ECCLESIASTICAL    LAW 


STATE    OF    NEW   YORK. 


BY 

MURRAY  HOFFMAN. 


NEW   YORK: 

POTT  AND  AMERY,  5  &  13  Cooper  Union, 

Fourth  Avenue. 

1868. 


Entered  according  to  Act  of  Congress,  iu  the  year  1868,  by 

MuKRAY  Hoffman, 

in  the  Clerk's  Office  of  the  District  Court  for  the  Southern  District  of  New  York. 


RIVERSIDE,    CAMBRIDGE  : 

STEREOTYPED    AND    PRINTED    BT 

H.    0.    HODGniON   AND   COMPANT. 


3V 


8 

§  PREFACE. 

M 
O 

O 


O 


< 


Questions  connected   with  the    incorporation    of   Re- 
H    ligious  Societies  under  the   statutes  of  the  State  of  New 
York,  have  come  very  frequently,  of  late  years,  before  our 
courts  of  justice.     These  questions  are  often  influenced  by 
the  ecclesiastical  system  of  the  church  or  body,  in  con- 
nection with  which  they  arise.     An  attempt  is  made  in 
the  following  pages  to  set  forth,  in  a  convenient  form,  the 
statute  law,  the  decisions   of  courts  of  justice,  and  such 
ecclesiastical  regulations  as  are  useful  in  explaining  the 
j^)Ositive  law   and   its   mode  of  execution.      An   historical 
^?    notice  is  introduced  of  all    those   churches  which  had   a 
place  of  any  importance  in  the  Colony,  before  the  Revolu- 
tion. 

The  following  table  shows  the  distribution  of  the  sub- 
jects. 


■r 


"•t^84 


TABLE  OF  CONTENTS. 


-♦- 


CHAPTER  I. 

PAGE 
THE   CHURCH   OF   ENGLAND   IN   THE   COLONY  ....  1 

CHAPTER  n. 

CHARTERS    TO   CHURCHES   OF    THE   CHURCH   OF   ENGLAND  .  14 

CHAPTER  in. 

THE   CONSTITUTION   OF  1777,  ETC.  —  STATUTES   OF    E<iUALITY. — 

THE   GENERAL   ACT   OF   APRIL   6,    1784  ....         40 

CHAPTER  IV. 

THE   PROTESTANT    EPISCOPAL   CHURCH 44 

CHAPTER  V. 

THE    DUTCH   CHURCH 98 

CHAPTER  VI. 

THE   PRESBYTERIAN   CHURCH 130 

CHAPTER  VII. 

THE   FRENCH   CHURCH 138 

CHAPTER  Vin. 

THE   LUTHERAN    CHURCH 139 

CHAPTER  IX. 

THE   ROMAN   CATHOLIC   CHURCH 141 

CHAPTER  X. 

THE   REFORMED    PRESBYTERIAN    CHURCH 149 


vi  Table  of  Contents. 

CHAPTER  XL 

PAGE 
THE   ASSOCIATE   REFORMED    CHURCH   OF   NEW   YORK      .  .  .      152 

CHAPTER  Xn. 

THE   METHODIST    EPISCOPAL    CHURCH 154 

CHAPTER  Xni. 

THE    QUAKERS 157 

CHAPTER  XIV. 

THE    SHAKERS 159 

CHAPTER  XV. 

INCORPORATIONS    GENERALLY   UNDER   SECTION    THREE  .  .      161 

CHAPTER  XVI. 

GENERAL     PROVISIONS     APPLICABLE     TO      ALL     INCORPORATIONS 

UNDER   ACT   OF    1813,    AND   ITS   AMENDMENTS  .-  .  173 

CHAPTER  XVII. 

CHAPELS,   ASSOCIATE   CHURCHES,    ETC 206 

CHAPTER  XVIII. 

FREE   CHURCHES 209 

CHAPTER  XIX. 

BURYING-GROUNDS,   CEMETERIES,   VAULTS 219 

CHAPTER  XX. 


PEWS    AND   PEW-HOLDERS 


243 


CHAPTER  XXI. 

DISTURBANCE    OF    RELIGIOUS    WORSHIP  ......      255 

CHAPTER  XXII. 

THE    DISMISSAL   OF   MINISTERS 260 

CHAPTER  XXIII. 

THE   INTERPOSITION   OF    CIVIL   TRIBUNALS 274 

APPENDIX 295 


ECCLESIASTICAL  LAW 


STATE    OF    NEW   YORK. 

CHAPTER  I. 

CHURCH  OP  ENGLAND  IN  THE  COLONY. 

THE  legal  and  actual  position  of  the  Clmrcli  of  England 
in  the  Colony  of  New  York  is  of  importance  upon  some 
questions  even  at  this  day.  It  is  of  much  interest  to  all 
Churchmen.  The  Protestant  Episcopal  Church  will  be  very 
imperfectly  understood  if  we  do  not  comprehend  the  state 
of  the  Church  of  England  in  the  Colony. 

From  the  time  that  Master  Wolfall,  in  Hudson's  Bay, 
after  a  godly  sermon,  administered  the  Holy  Communion 
after  the  order  of  the  Church  of  England,^  and  from  the 
time  when  the  first  services  were  held  according  to  the  Book 
of  Common  Prayer,  on  the  bank  of  James  River,^  efforts 
were  made  to  make  the  Church  of  England  the  established 
Church  of  many  of  the  colonies,  and  to  compel  a  general 
contribution  for  its  support.  At  the  same  time  the  system 
of  toleration,  as  it  prevailed  in  England,  was  allowed. 

In  Hoffman's  "  Law  of  the  Church  "  (p.  19,  etseq.),  are 
authorities,  showing  that  in  South  Carolina,  Virginia,  and 
Maryland,  the  establishment  was  complete.  Conformity  was 
enjoined,  and  the  support  of  the  ministry  enforced.  All 
this  was  the  act  of  the  legislative  assemblies,  the  then 
representatives  of  the  people,  and  undoubtedly  representing 

1  Hakluyt,  vol.  iii.  p.  166  (1578).  2  a.  D.  1607. 

1 


2       Ecclesiastical  Law  in  the  State  of  New   York. 

their  actual  opinion  in  those  colonies.  The  English  Tolera- 
tion Acts  were  recognized  or  reenacted. 

An  impartial  examination  of  the  annals  of  the  period  will 
support  the  assertion,  that  the  system  of  an  established 
Church  was  enforced  with  far  more  moderation  and  justice, 
in  what  may  be  termed  the  Church  of  England  Colonies, 
than  in  any  other. 

We  may  now  advert  to  the  enactments  bearing  upon  this 
subject. 

By  the  laws  of  the  Duke  of  York  of  1664,  "  no  minister 
was  to  be  allowed  to  officiate,  unless  he  should  produce  tes- 
timonials to  the  Governor,  that  he  had  received  ordination, 
either  from  some  Protestant  bishop  or  minister  within  some 
part  of  His  Majesty's  dominions,  or  the  dominions  of  some 
foreign  prince,  of  the  Reformed  Religion." 

"  Upon  this  the  Governor  shall  induct  the  minister  into 
the  parish,  that  shall  make  presentation  of  him  as  duly 
elected  by  the  major  part  of  the  inhabitants,  household- 
ers. 


"  1 


By  an  order  of  the  Court  of  Assizes  in  1672,  it  was 
directed,  that  although  divers  persons  may  be  of  different 
judgments,  yet  all  shall  contribute  to  the  minister  estab- 
lished and  allowed  of.  The  laws  were  to  be  duly  observed 
as  to  parochial  churches.  And  in  1675,  a  similar  order  was 
made  to  tevy  a  rate  upon  all  the  towns  which  had  not 
already  a  sufficient  maintenance  for  a  minister. 

By  another  of  the  Duke's  laws  of  1664,  it  was  ordered, 
that  for  the  orderly  management  of  all  parochial  affairs, 
eight  of  the  most  able  men  of  each  parish  should  be  chosen 
by  the  major  part  of  the  householders,  to  be  overseers,  out 
of  which  number,  the  constable  and  such  eight  overseers 
shall  yearly  make  choice  of  two  to  be  church- wardens ;  and 
in  case  of  the  death  of  any  of  the  said  overseers  and  church- 
wardens, or  his  or  their  departure  out  of  the  parish,  the 
said  constable  and  overseers  shall  make  choice  of  another 
to  supply  his  room. 

These  church-wardens  were  to  make  presentment  at  the 

1  Church,  4.     Coll.  Hist.  SocieUj,  vol.  i.  p.  332. 


Church  of  England  in  the   Colony.  3 

sessions  of  niistlemeanors  which  had  come  to  their  knowl- 
edg-e,  as  swearing,  Sabbath-breaking,  etc. 

"  The  minister  of  every  parish  was  to  preach  every  Snn- 
day,  to  pray  for  the  King,  etc.  He  was  publicly  to  adminis- 
ter the  Sacrament  of  the  Lord's  Supper  once  every  year  at 
least  in  his  parish  church,  not  denying  it  to  persons  that 
for  want  of  health  shall  require  it  at  their  houses.  He  was 
not  to  refuse  the  Sacrament  of  Baptism  to  the  children 
of  Christian  parents,  when  they  shall  be  tendered." 

"  No  person  shall  be  molested,  fined,  or  imprisoned  for 
differing  in  judgment  in  matters  of  religion,  who  professes 
Christianity." 

This  is  a  remarkable  body  of  laws  to  have  proceeded  from 
a  governor  of  the  Duke  of  York,  afterwards  James  the  Sec- 
ond, and  by  his  authority.  It  may  perhaps  be  regarded  as 
springing  from  the  same  motives  which  afterwards  led  him 
to  form  that  strange  union  with  the  Dissenters  in  England — 
his  animosity  to  the  Anglican  Church,  and  his  intention  to 
plant  the  Roman  Catholic  Church  upon  her  ruins.  (Ma- 
caulay's  History,  vol.  ii.  p.  195  etc.). 

The  following  are  important  documents  upon  the  present 
subject. 

One  article  of  the  instructions  to  Governor  Dongan  of 
1686  is :  "  You  are  to  take  especial  care  that  God  Almighty 
be  devoutly  served  throughout  the  government,  the  Book  of 
Common  Prayer  as  it  is  now  established  read  every  Sunday 
and  Holy  Day,  and  the  blessed  Sacraments  administered 
according  to  the  rites  of  the  Church  of  England." 

"  You  shall  be  careful  that  the  churches  already  built,  be 
well  and  orderly  kept,  and  more  be  built  in  the  Colony. 
And  that  besides  a  competent  maintenance  be  assigned  to 
the  minister  of  each  church,  a  convenient  house  be  built  at 
the  common  charge  for  each  minister;  and  a  competent 
proportion  of  land  be  assigned  for  a  glebe." 

"  And  you  are  to  take  care  that  the  parishes  be  so 
limited  and  settled,  as  you  shall  find  most  convenient  for 
accomplishing  this  good  work."     (Art.  32.) 

"  Our  will  and  pleasure  is,  that  no  minister  be  preferred 


4       Ecclesiastical  Laio  in  the  State  of  New   York 

by  you  to  any  ecclesiastical  benefice  in  our  Province,  with- 
out a  certificate  from  the  Archbishop  of  Canterbury,  of  his 
being  conformable  to  the  doctrine  and  discipline  of  the 
Church  of  England,  and  of  a  good  life  and  conversation." 
(Art.  33.) 

And  by  Article  35,  —  "  to  the  end  that  the  ecclesiastical 
jurisdiction  of  the  Archbishop  of  Canterbury  may  take  place 
in  our  Province  as  far  as  conveniently  may  be,  you  are  to 
give  all  countenance  and  encouragement  in  the  exercise  of 
the  same,  except  only  the  collating  of  benefices,  granting 
licenses  for  marriages,  and  probate  for  wills,  which  we  have 
reserved  to  you,  our  Governor  for  the  time  being." 

"  You  are  to  permit  liberty  of  conscience  to  all  persons 
except  Papists,  so  that  they  be  content  with  a  quiet  enjoy- 
ment of  the  same."  ^ 

The  instructions  to  Governor  Sloughter  of  1689  were  the 
same,  except  that  the  Bishop  of  London  was  substituted  for 
the  Archbishop  of  Canterbury.  Those  to  the  Governor,  the 
Earl  of  Bellemont,  of  1697,  and  to  Governor  Hunter  of 
1709,  are  also  nearly  identical.  In  the  latter  is  this  clause : 
"  We  authorize  you  to  collate  any  person  or  persons  to  any 
churches,  chapels,  or  other  ecclesiastical  benefices  within 
our  said  Province  and  territories  aforesaid  as  often  as  any 
of  them  shall  happen  to  be  void." 

The  term  "  Collation,"  used  in  these  documents,  has  in 
general  the  same  meaning  in  the  English  law  as  "  Institu- 
tion," except  that  it  is  the  term  exclusively  used  when  the 
benefice  is  in  the  Bishop.  Then  there  is  no  presentation, 
but  immediate  institution. 

The  clerk  by  institution  or  collation,  hath  the  care  of 
souls  committed  to  him.  In  virtue  of  collation  as  well  as 
of  institution,  the  clerk  can  enter  into  the  glebe,  and  take 
the  tithes;  though  for  want  of  induction,  he  cannot  yet 
grant  or  sue  for  them.  (Burns,  vol.  i.  pp.  104,  170.)  In 
the  letter  of  the  Society  for  the  Propagation  of  the  Gospel, 
to  Queen  Anne,  of  the  20th  of  August,  1712,  it  is  stated, 
"  that  out  of  her  pious  concern  that  all  her  subjects  in  all 

1    Colonial  Documents,  vol.  iii.  p.  372. 


Church  of  E)u/land  in  the   Colony.  5 

parts  of  her  dominioD  should  be  instructed  in  the  principles 
of  our  most  holy  religion,  she  had  been  pleased  to  g-ive  in- 
structions to  the  governors  of  the  plantations  in  America, 
and  particularly  to  the  governors  of  New  York  and  New 
Jersey,  that  the  Book  of  Common  Prayer,  as  by  law  estab- 
lished, shall  be  read  each  Sunday  and  Holy  Day,  and  the 
Sacraments  administered,  according  to  the  rites  of  the 
Church  of  England." 

The  letter  of  the  Bishop  of  London,  Dr.  Sherlock,  on  the 
subject  of  the  Church  in  the  colonies,  addressed  to  the  King 
in  Council,  of  February  1759,  is  full  of  valuable  information 
and  facts.  1 

"  In  1696  the  King  directed,  that  the  President,  Council, 
and  Ministers  should  provide  that  the  live  word  and  service 
of  God  should  be  preached,  planted,  and  used,  according  to 
the  rites  and  doctrines  of  the  Church  of  England." 

He  gives  many  details  respecting  the  Southern  and  West 
India  Colonies  not  pertinent  to  our  present  inquiry,  and 
adds :  '*  The  Church  of  England  being  established  in  Amer- 
ica, the  Independents  and  other  Dissenters  who  went  to 
settle  in  New  England,  could  only  have  a  toleration,  and  in 
fact  they  had  no  more,  as  appears  by  their  several  charters, 
and  more  particularly  by  the  Rhode  Island  charter  granted 
in  the  14th  year  of  Charles  II." 

"Thus  stands  the  right  of  the  Church  of  England  in 
America.  And  in  fact  at  least  one  half  of  the  plantations 
are  of  the  established  Church,  and  have  built  churches  and 
ministers'  houses,  and  have,  by  laws  of  their  respective 
Assemblies,  confirmed  by  the  Crown,  provided  maintenance 
for  the  Church  of  England  clergy." 

But  upon  this  subject  certain  acts  of  the  Colonial  Assem- 
bly are  of  great  importance. 

An  act  was  passed  in  September  1693,  for  settling  a  min- 
istry and  raising  a  maintenance  for  them  in  the 
city  of  New  York,   and   counties   of    Richmond,  ^'"''^^^■ 
Westchester,  and  Queens.    It  provided  that  there  should  be 
called,  inducted,  and  established,  a  good  and  sufficient  Prot- 

1  Colonial  Documents,  vol.  vii.  p.  360. 


6       Ecclesiastical  Law  in  the  State  of  Neiu   York. 

estaut  minister  to  officiate  and  have  the  cure  of  souls,  as 
follows:  "In  the  City  of  New  York,  one  ;  in  the  County 
of  Richmond,  one  ;  in  the  County  of  Westchester,  tw  o ;  one 
to  have  the  care  of  Westchester,  Eastchester,  Yonkers,  and 
the  Manor  of  Pelham,  the  other  to  have  the  care  of  Rye, 
Mamaroneck,  and  Bedford  ;  in  Queens  County,  two  ;  one  to 
have  the  charge  of  Jamaica  and  the  adjacent  towns  and 
farms,  the  other  to  have  the  care  of  Hempstead,  and  the 
next  adjacent  towns  and  farms."     (§  1.) 

By  the  second  section,  there  was  to  be  assessed,  levied, 
and  paid,  in  every  such  city  and  county,  for  the  maintenance 
of  each  of  such  respective  ministers  the  sum  specified, 
namely,  ,£100  in  New  York,  £60  in  Richmond,  etc.,  £120  in 
Queens,  etc. 

The  third  section  directed  a  warrant  to  be  issued  by  the 
justices,  to  summon  the  freeholders  of  those  places  to 
choose  annually  ten  vestrymen  and  two  church-wardens ; 
and  this  body  was  vested  with  the  power  of  making  the 
assessment  and  collection  before  prescribed. 
The  fifth  section  is  as  follow  s  :  — 

"  That  all  and  every  the  respective  ministers,  that  shall 
be  settled  in  the  respective  city,  counties,  and  precincts 
aforesaid,  shall  be  called  to  officiate  in  their  respective 
precincts,  by  the  respective  vestrymen  and  church-wardens 
aforesaid." 

This  statute  received  the  King-'s  assent  in  Council  the 
11th  May,  1697. 

It  may  be  noticed  that  by  the  fourth  section  of  the  Act 
of  27th  June,  1704  (the  act  relating  to  Trinity  Church),  the 
£100  to  be  raised  in  the  city  of  New  York,  was  absolutely 
appropriated  to  the  Rector  of  Trinity  Church  for  the  time 
being,  after  the  death  of  the  Rev.  Mr.  Vesey,  the  then 
Rector. 

An  act  was  passed  on  the  fourth  of  August  1705  (con- 
firmed by  the  Queen  on  the  eleventh  of  April  1706),  explain- 
ing and  enforcing  the  Statute  of  1693. 

By  the  second  section,  the  payments  of  the  sums  spec- 
ified were  to  be  made  to  the  ministers  then  inducted  and 


Church  of  England  in  the  Colony.  7 

established  at  the  places  named,  and  hereafter  to  be  pre- 
sented and  inducted  to  the  said  places,  namely,  llichmond, 
Kings  and  Queens  Counties.  New  York  is  not  mentioned, 
no  doubt  because  of  the  Act  of  1704. 

And  by  section  4,  "  the  vestrymen  and  church-wardens 
were  to  present  the  ministers,  which  ministers  shall  be  in- 
stituted and  inducted  to  the  said  churches  respectively." 

We  may  here  follow  out  this  series  of  statutes. 
•  An  Act  of  July  17th,  1721  (S.  &  L.  p.  146),  prescribed  an 
oath  to  be  taken  by  the  vestrymen  to  assess  the  freehold- 
ers iuipartially.  An  Act  of  June  22d  1731  (S.  &  L.  p.  216), 
adopted  all  the  English  statutes  relating  to  the  affirmations 
of  Quakers.  An  Act  of  the  2d  of  September  1744  (S.  &  L. 
349),  was  merely  to  alter  the  time  of  holding  elections  in 
Richmond  County,  for  the  choice  of  the  wardens  and  ves- 
trymen appointed  by  the  Act  of  1693.  And  the  Act  of  the 
29th  November,  1745,  changed  the  number  of  vestrymen  in 
the  city  of  New  York.  Fourteen  were  to  be  chosen,  two 
for  each  Ward. 

The  vestrymen  and  wardens  constituted  by  the  Act  of 
1693,  was  an  anomalous  body  chosen  by  the  freeholders,  not 
the  body  known  by  that  title  in  the  English,  or  in  our  gen- 
eral Ecclesiastical  Law. 

In  the  Session  of  1695  the  Colonial  Assembly  resolved, 
that  the  wardens  and  vestrymen  had  power  to  call  a  dis- 
sentiug  minister  under  the  Act  of  1693. 

In  April  of  that  year,  the  Assembly  being  summoned  to 
the  Council  Chamber,  Governor  Fletcher  rebuked  them  for 
assuming  that  they  alone  could  explain  an  act  which  they 
alone  had  not  made.  He  had  also,  in  September  1693,  ad- 
monished them,  that  they  did  not  constitute  the  sole  legis- 
lative power ;  that  the  judges  were  to  interpret  the  law. 

There  was  a  proceeding  in  1699  very  important  upon  this 
question.  A  bill  had  passed  the  Assembly  for  settling  a 
ministry  of  Dissenters.  The  Earl  of  Bellemont  writes,  that 
it  being  contrary  to  his  instructions,  he  would  not  give  his 
assent  to  the  bill,  but  had  rejected  it.^ 

1  Colonial  Documents,  vol.  ir.  p.  536. 


8       Ecclesiastical  Law  in  the  State  of  New  York. 

The  action  of  the  Council  upon  this  bill  was  as  follows  :  — 

"  At  a  Council  held  at  the  Fort  the  10th  of  May,  1699, 
William  Smith,  Chief  Justice,  and  Chairman  of  the  Commit- 
tee, reported  that  as  to  the  bill  for  the  support  of  minis- 
ters, schoolmasters,  etc.,  the  Governor  had  communicated 
to  the  Committee  his  instructions  respecting  the  settlement 
of  religion  in  the  Province,  and  they  were  of  opinion,  that 
by  such  instructions.  His  Excellency  ought  not  to  pass  the 
bill."  An  application  to  the  King  for  a  modification  and 
relief  was  earnestly  recommended.^ 

This  chief  justice  was  the  father  of  William  Smith  the 
historian,  a  writer  whose  unfairness  where  the  Church  is 
concerned  is  marked.  His  statement  of  the  transactions  at 
Jamaica,  hereafter  adverted  to,  is  proof  of  this  charge.  His 
denunciations  of  Lord  Corubury's  proceedings  are  violent, 
perhaps  no  more  than  they  deserve ;  while  of  the  course  of 
Hunter,  of  Morris,  of  their  moderation  and  justice,  and 
of  the  ultimate  success  at  law  of  the  Dissenters  by  the 
decision  of  a  Churchman,  he  has  not  one  word.  Doctor 
Johnson's  strong  animadversions  upon  his  history  are  well 
merited.^ 

This  leads  me  to  the  detail  of  the  transactions  at  Ja- 
maica, by  which  the  meaning  of  the  statutes  was  tested 
and  determined. 

In  1702  the  first  vestrymen  and  wardens  were  chosen 
at  that  place  by  the  freeholders,  under  the  Act  of  1693.  In 
the  same  year  Mr.  Hubbard,  a  dissenting  minister,  was 
called.  Wliether  he  was  inducted  by  the  Governor  or  not, 
does  not  appear.^ 

In  1704  Mr.  Urquhart,  of  the  Church  of  England,  was 
inducted  by  Lord  Cornbury,  and  put  into  possession  of  the 
church  and  glebe  by  his  warrant  alone.  After  his  death, 
his  widow  put  a  dissenting  minister,  who  had  married  her 
daughter,  into  possession.  This  was  about  1710,  as  nearly 
as  I  can  ascertain  it. 

1  Journals  of  the  Council,  vol.  i.  p.  138. 

2  Letter  to  Arcbishhop  Seeker,  March  20,  1759,  Colonial  Documents,  vol.  vii 
p.  870.  '  Ibid.,  vol.  V.  321,  328. 


Church  of  England  in  the   Colony.  9 

In  1712  Governor  Hunter  granted  an  instrument  of  in- 
duction unto  the  church  at  Jamaica,  a  dissenting-  clergy- 
man being  in  possession.  Proceeding's  were  tlien  had  of 
which  we  have  a  full  and  reliable  account,  and  which  are 
very  creditable  to  that  governor. 

The  Rev.  Mr.  Henderson,  a  missionary  of  the  Church, 
represents  the  case  thus :  ^  "  That  the  two  Colonial  stat- 
utes made  it  plain  that  the  ministry  of  the  Church  of  Eng- 
land was  intended  to  be  maintained,  and  that  the  Dissenters 
had  taken  forcible  possession  of  the  church  at  Jamaica 
through  the  connivance  of  Governor  Hunter  in  turning  out 
well-affected  Justices." 

An  answer  to  this  statement  appeared,  in  which  it  was 
alleged,  that  Hunter  had  illegally  favored  the  Rev.  Mr. 
Poyer  in  granting  a  letter  of  induction  to  him,  although 
not  legally  presented. 

Mr.  Poyer  sued  the  church -wardens  of  Queens  County 
before  the  Justices  of  Session,  for  refusing  to  pay  him  a 
quarter's  salary.  They  defended  on  the  grounds  —  1.  That 
they  had  no  money.  2.  That  there  was  no  order  of  the 
Justices  to  pay  the  amount.  3.  Because  they  thought  him 
not  qualified  under  the  act  to  demand  the  salary,  or  any 
part  of  it.     The  court  gave  judgment  for  the  defendants.^ 

In  a  letter  of  Governor  Hunter  to  John  Chamberlain, 
of  February  1711-12,  he  says  :  "  Mr.  Poyer  having  the 
Society's  Mission,  and  the  Lord  Bishop  of  London's  recom- 
mendation to  the  church,  I,  upon  the  first  application, 
granted  him  induction. 

"  The  Dissenters  being  in  possession  of  the  manse  house, 
by  the  contrivance  of  the  widow  of  Mr.  Urquhart,  whose 
daughter  had  married  a  dissenting  minister  there,  I  con- 
sulted the  Chief  Justice,  Mompesson,  how  far  I  might  pro- 
ceed in  putting"  Mr.  Poyer  in  possession,  who  gave  his  opin- 
ion in  writing,  iliat  it  could  not  be  done  otherwise  than  in 
course  of  law,  without  a  hicfh  crime  and  misdemeanor.^' 

He  proceeds  to  detail  the  action  of  the  Justices  of  Queens 
County,  and  that  he  had  urged  Mr.  Poyer  to  try  the  question 

1    Colonial  Documents,  vol.  v.  p.  311.  2  md,^  p.  334. 


10     Ecclesiastical  Laiv  in  the  State  of  Neio   York. 

at  law,  offeriug"  to  aid  him  in  bearing"  the  expense.  That 
"he  had  urged  Mr.  Poyer  to  commence  a  suit;  all  other 
measures,  except  those  that  were  legal,  being  a  real  detri- 
ment to  the  interests  of  the  church." 

There  is  also  a  letter  from  Colonel  Morris  upon  the  sub- 
ject, which  deserves  notice. 

He  states  that  Governor  Fletcher,  and  James  Graham, 
Speaker  of  the  Assembly,  sought  to  benefit  the  church,  the 
Assembly  being  inclined  to  maintain  a  ministry.  Graham, 
who  had  the  drawing"  of  the  bill,  prescribed  a  method  of 
induction,  and  so  managed  it,  that  it  would  not  do  well  for 
the  Dissenters,  and  but  lamely  for  the  church,  though  it 
would  do  with  the  help  of  the  Governor,  and  that  it  was  uot 
all  wished,  but  it  was  the  most  that  could  be  got  at  the  time, 
the  Assembly  being  for  the  most  part  Dissenters,  who  would 
have  defeated  the  act,  had  they  seen  through  the  artifice." 

Colonel  Morris  also  states  the  interview  between  Judg-e 
Coe  and  the  Governor  in  relation  to  Foyer's  course,  and  the 
action  brought  by  him ;  the  representations  that  the  Dis- 
senters had  the  great  majority  in  the  Assembly,  and  that 
the  act  was  meant  to  be  for  the  Dissenters ;  that  he  had 
urged  that  the  Council  and  Governor  made  part  of  the 
Legislature,  and  their  intention  was  probably  exactly  the 
reverse.  As  to  the  Governor,  this  was  a  certainty.  The 
act  must  be  construed  by  its  language,  and  that  plainly 
appears  to  be  in  favor  of  the  Church  of  England. 

He  adverts  to  the  loose  wording  of  the  act,  and  that  the 
claim  of  the  Dissenters  that  it  was  for  their  benefit  as  well 
as  for  our  own,  might  be  supported  without  much  wresting. 
He  sensibly  observes,  "  that  if  by  force  the  salary  is  taken 
from  them  and  paid  to  the  ministers  of  the  Church,  it  may 
be  the  means  of  subsisting  these  ministers,  but  they  will 
not  make  many  converts  among  a  people  who  think  them- 
selves injured.  Whereas,  let  this  matter  be  once  regularly 
determined,  they  will  live  in  peace,  and  the  Church  will  in 
all  probability  flourish,  and  I  believe  would  at  this  day  have 
been  in  a  better  position  had  there  been  no  act  in  her 
favor." 


Church  of  England  in  the  Colons/.  11 

In  1733  Governor  Cosby  removed  Chief  Justice  Morris 
from  his  place  as  chief  justice,  and  among-  others  assigned 
the  following  reason  :  "  That  some  years  since,  the  Dissent- 
ers in  the  parish  of  Jamaica  brought  an  ejectment  against 
the  minister  of  the  Church  of  England  for  the  church  he 
preached  in  and  was  possessed  of.  When  the  trial  came 
on,  the  defendant  demurred  to  the  plaintiffs'  evidence. 
The  chief  justice  desired  them  to  waive  the  demurrer,  tell- 
ing them  that  if  the  jury  found  for  the  plaintiffs  he  would 
grant  a  new  trial.  The  defendant's  counsel,  fearing  the 
worst,  did  consent,  and  the  jury  found  for  the  plaintiffs. 
The  defendant's  counsel  moved  for  a  new  trial,  and  urged 
his  promise.  He  denied  it  at  first,  but  when  they  offered 
to  make  oath  of  it,  he  said  a  rash  promise  ought  not  to  be 
kept,  and  never  would  grant  it;  whereby  they  lost  their 
church,  and  the  Dissenters  have  since  had  it." 

From  this  period  before  1733,  perhaps  as  early  as  1712, 
the  Dissenters  have  had  uninterrupted  possession  of  the 
property  and  glebe.^ 

In  Thompson's  "  History  of  Long  Island,"  it  is  stated  that 
the  chief  justice  answered  this  accusation  against  him  in 
a  printed  letter.  I  have  not  met  with  this  production,  but 
very  little  should  be  required  to  exonerate  a  judge  from  an 
accusation  so  extremely  improbable,  as  well  as  disgraceful. 

In  considering  the  question  on  these  facts  in  a  legal 
view,  two  points  arise  :  the  effect  of  the  royal  instructions 
upon  the  statute,  and  the  true  construction  of  the  statute. 

Those  instructions  before  and  after  the  act,  commanded 
the  induction  of  ministers  of  the  Church  of  England  only, 
but  undoubtedly  they  were  overruled  by  an  act  of  Assembly 
with  the  royal  assent.  The  assent  of  the  Governor  was 
the  same  as  that  of  the  King  in  Council,  but  a  statute  could 
be  annulled  by  the  King.  Unless  and  until  so  annulled, 
it  was  of  perfect  force  and  legality .^  In  the  present  in- 
stance the   assent   had    been    actually   given   in    Council. 

1  Col.  Doc,  vol.  viii.     Letter  of  Rev.  Wm.  L.  Johnson  to  the  writer. 
-  Hoffinan's  Estate,  etc.,  of  the  Corporation,  vol.  i.  p.  29  ;  22  N.  Y.  Kep.  p. 
11. 


12     Ecclesiastical  Law  in  the  State  of  New   York. 

Chief  Justice  Morris  was  a  strong  asserter  of  the  invalid- 
ity of  royal  instructions  when  opposed  by  a  colonial  statute.^ 

The  meaning  of  the  Statute  of  1693,  we  have  observed, 
was  much  contested.     Its  language  was  ambiguous. 

But  while  the  right  of  presentation  was  vested  in  that 
particular  body  of  wardens  and  vestrymen  created  by  the 
act,  there  was  no  provision  requiring  the  Governor  to  in- 
duct. The  instructions  were  not  inconsistent  with  the 
statute.  The  English  law  was  observed.  The  presenta- 
tion was  exclusively  in  one  body,  induction  in  another. 
And  Lord  Cornbury  may  not  have  been  wrong  in  denying 
the  right  of  the  dissenting  minister,  however  unjustifiable 
in  dispossessing  him  by  force.  Governor  Fletcher  in  1693, 
insisted  that  collation  was  vested  in  him,  and  that  the  act 
had  not  robbed  him  of  it. 

But  after  the  Statute  of  1705,  it  seems  to  me,  the  Gov- 
ernor was  bound  to  induct  the  minister  presented  by  the 
body  of  wardens  and  vestrymen.  The  language  of  the  foui-th 
section  of  the  act  of  that  year  is  very  strong. 

With  the  exception,  then,  of  the  unwarrantable  conduct 
of  Lord  Cornbury,  whom  the  historian  and  the  novelist 
combine  to  denounce,^  the  course  of  those  in  power  and  of 
the  Bench  was  signally  moderate,  just,  and  legal.  Refer- 
ence was  made  to  the  courts  to  expound  the  law.  That 
was  pronounced,  and  submission  followed. 

The  statutes  referred  to  were  offensive  to  every  class  of 
Dissenters,  except  those  who  had  the  predominance  of  free- 
holders in  the  particular  counties.^  The  Presbyterians  con- 
trolled at  Jamaica,  and  finally  obtained  the  glebe. 

Hence  efforts  were  made  in  1706,  and  afterwards,  to  repeal 
or  modify  these  laws.  A  bill  was  introduced  to  exempt 
the  Protestants  of  the  Counties  of  New  York,  Westchester, 
Queens  and  Richmond,  ffom  any  taxation  for  the  support 
of  ministers  of  churches  to  which  they  did  not  belong.  It 
was  rejected.* 

1   Colonial  Documents,  vol.  v.  p.  19. 

-   Smith's  History.     Tiiompson's  Long  Island.     The  Water  Witch,  p.  22. 

^  Letter  of  Colonel  Morris,  before  cited. 

*  Journals  of  Council,  vol.  ii.  p.  1706. 


Church  of  England  in  the  Colony.  13 

So  in  1769  attempts  were  made  by  the  Assembly  to  have 
an  act  passed  for  allowing  churches  of  reformed  Protest- 
ants to  the  northward  of  the  Counties  of  Dutchess  and 
Ulster,  to  take  and  hold  real  estate  to  the  value  of  one  hun- 
dred pounds  per  annum,  given  to  them  for  the  support  of 
the  gospel  and  the  uses  of  schools.  The  Council  refused 
its  assent.^ 

It  has  been  before  noticed  that  the  Bishop  of  London 
(Sherlock)  considered  the  Statutes  of  Uniformity  and  Toler- 
ation to  prevail  in  the  colony.  But  while  this  is  true  as  to 
several  of  the  southern  colonies  by  virtue  of  legislation 
of  their  own,  it  does  not  api>ear  to  be  accurate  as  to  New 
York.  Counselor  West  gave  an  opinion  in  1724,  that  such 
acts  did  not  extend  to  New  York.  The  Bishop  of  Hereford 
had  taken  the  same  view ;  and  Bishop  Gibson  also.^  There 
is  in  Smith's  "  History  of  New  York,'*  p.  221,  an  able  ex- 
amination of  the  subject,  in  which  the  Statute  of  5th  Anne, 
made  upon  the  union  with  Scotland,  is  fully  considered. 
The  weig'ht  of  authority  and  argument  appears  to  be  against 
the  proposition. 

1  Journals  of  Council,  vol.  ii.      Sts.  1698,  1706,  1742. 

2  Hoffman's  Law  of  the  Churcli,  p.  18. 


CHAPTER  II. 

CHARTERS    TO    CHURCHES    OF    THE    CHURCH    OF    ENGLAND. 

§  1.  Particular  Charters.  There  was  no  general  act  or 
authority  in  colonial  days,  under  which  churches  could 
organize  and  acquire  corporate  powers.  Special  charters 
were  granted  by  royal  governors,  as  the  needs  of  the 
Church  appeared  to  demand  them  in  particular  places. 

The  earliest  of  these  was  that  to  Trinity  Church  in  the 
city  of  New  York  in  1697.  There  was  one  to  St.  Andrew's, 
Richmond  County,  in  1713;  to  St.  George's,  Hempstead,  in 
1735;  to  Grace  Church,  Jamaica,  and  to  St.  George's, 
Flushing,  on  the  17th  June,  1761 ;  to  St.  James',  Newtown, 
ou  the  9th  of  September,  1761  ;  to  St.  Peter's,  Albany,  on 
the  2d  of  December,  1762 ;  to  the  Parish  Church  of  Rye 
(Grace  Church),  the  19th  of  December,  1764 ;  to  Trinity 
Church  of  New  Rochelle,  the  2d  of  June,  1762;  to  St. 
Peter's,  Westchester,  the  2d  of  December,  1762;  to  St. 
Peter's,  in  the  Manor  of  Courtlandt,  near  Peekskill,  the 
18th  of  August,  1770  ;  to  the  Church  in  Poughkeepsie,  the 
9th  of  March,  1773. 

§  2.  In  a  note!  I  have  made  a  summary  of  the  charter 
and  laws  as  to  Trinity  Church,  New  York.  It  is  needless,  I 
think,  to  state  these,  or  the  questions  upon  them,  in  detail. 
It  may  be  hoped  that  the  matters  agitated  are  finally  set- 
tled. I  have  but  to  repeat  here  that  it  would  have  been  far 
better  had  Trinity  Church  rested  upon  the  charter,  and  the 
act  changing  her  name.  Her  position  and  claims  were  as 
absolute  and  extensive  under  these,  as  under  the  Act  of  1814  ; 
and  I  do  not  doubt  that  we  should  have  had  them  now  as- 
sured by  judicial  determination  in  her  favor,  had  she  rested 
upon  them.  The  Act  of  1814,  in  my  judgment,  did  not 
strengthen  her,  and  led  to  aggression,  and  that  before  the 
legislature,  where  defeat  would  have  seriously  injured  her. 

1  Note  I. 


Charters  to  Churches  of  the  Church  of  England.     15 

That  Act  of  1814  has  heeii  ably  defended.^  It  may  be 
sustained  fully  and  mainly  upon  tlie  ground,  that  it  was  a 
declaratory  act  of  what  the  charter  prescribed  or  allowed. 

§  3.  Protected  hy  Constitution.  These  church  charters  were 
preserved  in  force  by  the  36th  section  of  the  Constitution 
of  1777,  providing  that  nothing  in  such  Constitution  con- 
tained  should  be  construed  to  affect  any  grant  of  land  with- 
in this  State,  made  by  the  authority  of  the  said  king,  or  his 
predecessors,  or  to  annul  any  charters  to  bodies  politic  by 
him  or  them  or  any  of  them  made  prior  to  that  date,  (14th 
of  October,  1775). 

So  the  14th  section  of  the  Act  of  April,  1784,  chapter  18, 
renewed  in  the  12th  section  of  the  General  Act  of  April 
5th,  1813,  recognizes  the  legality  of  religious  corporations, 
created  under  the  great  seal  of  the  Colony. 

§  4.  Alteration  of  Name.  In  many  instances,  particular 
acts  of  the  State  legislature  have  been  obtained  altering 
the  style  and  name  from  "  in  communion  with  the  Church 
of  England  as  by  law  established,"  to  "  in  communion 
with  (or  of)  the  Protestant  Episcopal  Church  in  the  State 
of  New  York." 

Thus  by  an  Act  of  the  3d  of  March,  1789  (chapter  51),  the 
style  of  St.  Peter's  in  Albany  was  so  changed.  By  an  Act 
of  the  12th  of  March,  1793  (3  Greenl.  88),  a  similar  change 
was  authorized  as  to  Grace  Church,  Jamaica,  St.  George's 
Church,  Flushing,  and  St.  James',  Newtown.  By  an  Act 
of  5th  April,  1792  (chapter  46),  the  same  was  done  as  to  the 
church  in  Poughkeepsie. 

As  to  several  such  charters  no  such  act  has  been  passed. 
The  Church  of  St.  George's,  Hempstead,  of  St.  Andrew's, 
Richmond,  and  Trinity  Church,  New  Rochelle,  are  I  believe 
in  this  position.  Some  views  upon  this  point  are  hereafter 
submitted. 

The  provisions  of  these  charters  are  in  many  particulars 
substantially  the  same.  There  are  differences,  and  some 
of  importance,  which  will  be  noticed. 

§  5.  St.  George's,  Hempstead.     I  take  the  charter  of  St. 
1  Among  others  by  Judge  Redfield  of  Vermont.    Boston,  1858. 


16      Ecclesiastical  Lato  in  tJie  State  of  New   York 

George's  Church,  Hempstead,  as  an  example,  and  will 
endeavor  to  point  out  the  important  variations  in  other 
charters. 

(1.)  Preamhle.  The  petition  of  Robert  Jenner,  Rector, 
and  Robert  Cornell,  and  others  named,  inhabitants  of  the 
Parish  of  Hempstead,  in  Queens  County,  to  Governor  Cosby, 
was  recited,  stating  that  they  had  lately  built  a  new  church 
in  the  said  parish,  and  had  dedicated  it  to  the  service  of 
God,  accordiug  to  the  rites  and  ceremonies  of  the  Church 
of  England,  as  by  law  established,  by  the  name  of  St. 
George's  Church,  which  church  they  hold,  together  with  a 
parsonage  house  and  glebe  lands  in  said  parish.  That  for 
want  of  being  incorporated,  they  were  not  capable  of  re- 
ceiving such  donations  as  pious  persons  might  be  disposed 
to  give  unto  them,  or  of  purchasing  lands  and  tenements 
for  the  use  of  such  church,  or  carrying  on  its  affairs,  as 
otherwise  they  might  do. 

They  prayed  that  for  accomplishing  these  purposes,  they 
and  other  of  the  communicants  of  the  said  church  might  be 
created  a  body  politic  and  corporate. 

(2.)  Corporation  created.  It  was  then  ordained,  consti- 
tuted, and  declared,  etc.,  that  the  said  Robert  Jenner,  John 
Cornell,  etc.,  etc.,  and  the  rest  of  the  communicants  of  the 
said  church  in  the  Parish  of  Hempstead  aforesaid,  be,  and 
they  and  their  successors,  communicants  of  the  said  church, 
shall  be  from  time  to  time,  and  at  all  times  forever  here- 
after, a  body  politic  and  corporate,  in  deed,  fact,  and  name, 
by  the  name  of 

(3.)  Title.  The  Rector  and  Inhabitants  of  the  Parish  of 
Hemiistead  in  Queens  County,  on  Long  Island,  in  Communion 
of  the  Church  of  England,  as  by  law  establisJied.  And  them 
and  their  successors,  communicants  of  the  said  church^y 
the  name  of  the  rector  and  inhabitants,  etc.,  etc.,  {as  above), 
one  body  politic  and  corporate,  we  do  erect,  make,  consti- 
tute and  declare. 

The  usual  clause  as  to  perpetual  succession,  and  as  to 
suing  and  being  sued,  is  inserted. 

(4.)   To  take  and  hold  Lands.     "  They  and  their  successors, 


Charters  to   Churches  of  the   Church  of  England.     17 

by  the  same  name,  be,  and  sliall  forever  hereafter  be  capable 
and  able  in  the  law  to  take,  accept  of,  acquire  and  purchase, 
have,  hold,  and  enjoy  in  fee  forever,  or  for  life  or  lives,  or 
for  years,  or  in  any  other  manner,  messuag-es,  lands,  tene- 
ments, and  hereditaments ;  and  the  same  to  lease  or  demise 
for  one  or  more  years,  or  to  grant,  alien,  bargain,  sell  and 
dispose  of  for  life  or  lives,  or  forever  under  certain  yearly 
rents ;  and  also  to  accept  of,  take,  possess  and  purchase  any 
goods,  chattels  or  personal  estate,  and  the  same  to  hire,  let, 
sell  or  dispose  of,  at  their  will  and  pleasure ;  and  all  this  as 
fully  as  any  other  corporation  or  body  politic  within  that 
part  of  our  kingdom  called  England,  or  this  our  Province 
of  New  York,  may  lawfully  do.  Provided,  that  such  real  es- 
tate shall  not  at  any  one  time  exceed  the  yearly  rent  of  two 
hundred  pounds  over  and  above  the  church  and  grounds, 
and  the  parsonage  and  glebe  laud." 

The  grant  of  a  common  seal,  and  to  alter,  break,  and 
change  the  same  is  made. 

(5.)  Redor,  Wardens,  Vestrymen.  "  For  the  better  order- 
ing the  affairs  of  such  corporation,  there  shall  be  one  rector 
or  parochial  minister  of  the  Church  of  England  as  by  law 
established,  duly  qualified  for  the  cure  of  souls,  two  church- 
wardens, and  a  number  of  vestrymen  from  time  to  time 
elected  as  hereafter  expressed." 

(6.)  Power  in  whom  vested.  "  Which  vestrymen,  or  the 
major  part  of  them,  and  the  two  church-wardens,  or  one 
of  them,  together  with  the  rector  for  the  time  being,  shall 
apj)ly  themselves  to  take  care  for  the  best  disposing,  gov- 
erning, and  ordering  the  general  business  and  aifairs  of  and 
concerning  said  church,  and  of  or  concerning  all  such  lands, 
tenements,  and  real  and  personal  estate  as  shall  or  may  be 
acquired  as  aforesaid.'' 

(7.)  Tenure  of  first  Wardens,  etc.  The  Rev.  Robert  Jen- 
ner,  the  then  rector,  was  then  named  and  constituted  rec- 
tor during  his  natural  life ;  John  Cornell  and  Micah  Smith 
wardens ;  William  Cornell,  etc.,  to  the  number  of  ten  ves- 
trymen, to  continue   in   their  offices  during  their  natural 


18      Ecclesiastical  Law  in  the  State  of  New   York. 

lives  respectively,  or  until  others  were  duly  chosen  in  their 
stead." 

(8.)  Call  of  Vestry  and  Transaction  of  Business.  "  We  or- 
dain and  direct,  that  the  rector  of  the  church  for  the  time 
being,  or  in  his  absence  by  sickness,  one  church-warden 
by  consent  of  the  rector,  may  from  time  to  time  assemble 
and  call  together  the  said  church-wardens  or  one  of  them, 
and  vestrymen  for  the  time  being,  or  the  greater  number 
of  them,  to  consult,  advise,  and  do  the  business  and  affairs 
of  the  said  church,  and  to  hold  vestries  for  that  purpose." 

(9.)  In  case  of  Vacancy,  etc.  "  In  case  of  a  vacancy  of  a 
rector,  or  that  the  rector  for  the  time  being  should  absent 
himself  from  his  said  parish,  then,  and  in  either  of  such 
cases,  during  such  vacancy  or  absence,  the  church-wardens 
for  the  time  being,  or  one  of  them,  may  call  and  hold  such 
vestries  as  the  rector  might  do." 

Provisions,  applicable  to  the  death  or  removal  of  the 
original  ten  named  vestrymen  are  made,  which  need  not 
be  noticed. 

(10.)  Annual  Elections.  After  the  death,  removal,  or 
refusal  to  act,  of  the  vestrymen  and  wardens  named  in  the 
charter,  it  was  provided :  "  Then  and  from  thenceforth  the 
choice  as  well  of  the  vestrymen  as  of  the  church-wardens 
of  the  said  church,  shall  be  annual ;  and  that  yearly,  once 
in  the  year  forever  hereafter,  that  is  to  say,  on  Thursday  in 
Whitsun-week  in  every  year,  at  the  said  church,  the  com- 
municants of  the  said  church  for  the  time  being,  or  the 
major  part  of  them  present,  shall  elect,  choose,  and  appoint 
two  of  the  communicants  of  the  said  church  to  be  church- 
wardens and  six  other  communicants  of  the  said  church 
to  be  vestrymen,  for  the  ensuing  year. 

(11.)  Tenure  of  Office.  "  Which  church-wardens  and  ves- 
trymen so  chosen,  and  hereafter  to  be  chosen,  shall  enter 
immediately  u})on  their  respective  offices,  from  the  respec- 
tive times  they  shall  be  so  chosen,  until  other  fit  persons 
be  respectively  elected  in  their  respective  places. 

Powers.  "  They  shall  have  full  power  and  lawful  author- 
ity to  execute  and  perform  their  respective  offices  in  as  full 


Charters  to   Churches  of  the  Church  of  England.     19 

and  ample  manner,  as  any  church-wardens  or  vestrymen 
in  that  part  of  Great  Britain  called  England,  or  this  Prov- 
ince, have  or  lawfully  may  do." 

(12.)  Vacancy,  etc.  In  case  of  the  death,  resignation,  or 
removal,  or  refusal  to  serve,  of  a  warden  or  vestryman,  it 
was  made  lawful  for  the  communicants  of  the  church  for 
the  time  being,  or  the  major  part  of  them,  to  proceed  in 
manner  aforesaid,  and  make  a  new  election  of  one  or  more 
of  their  communicants  in  the  room  or  place  of  such  offi- 
cer, etc. 

(13.)  Call  of  Rectors.  "  The  patronage,  advowson,  dona- 
tion, or  presentation  of  and  to  the  said  church  and  parish, 
after  decease  or  removal  of  the  said  Robert  Jenner  the  then 
rector,  or  next  avoidance  thereof,  shall  appertain  and  be- 
long to,  and  is  hereby  vested  in  the  church-wardens  and 
vestrymen  of  Saint  George's  in  the  Parish  of  Hempstead 
aforesaid  for  the  time  being  and  their  successors  forever, 
or  the  major  part  of  them,  whereof  one  church-warden 
is  always  to  be  one." 

(14.)  Assessment,  £Q0.  The  rector  or  minister  for  the 
time  being  was  to  have  and  receive  the  sum  of  sixty  pounds 
yearly,  to  be  levied,  assessed,  collected,  and  paid  by  the  in- 
habitants of  the  precinct  or  parish  of  Hempstead  in  Queens 
County  aforesaid,  towards  the  maintenance  provided  by  the 
act,  for  settling  a  ministry,  etc.,  and  the  act  for  the  better 
explaining"  thereof. 

(15.)  Clerk,  Se.vton,  etc.  The  rector,  at  a  vestry  or  meet- 
ing, by  and  with  the  advice  and  consent  of  the  major  part 
of  the  members  then  present,  may  nominate  and  appoint  a 
clerk,  sexton,  or  bell-ringer,  to  and  for  the  said  church. 
Also,  a  clerk  and  messenger,  and  such  other  under-officers 
as  they  shall  stand  in  need  of,  to  remain  in  their  respective 
offices  so  long  as  the  rector,  church-wardens,  and  vestry- 
men for  the  time  being,  or  the  major  part  of  them,  shall 
see  fit. 

(16.)  By-laivs.  The  rector,  church-wardens,  or  one  of 
them,  and  the  vestrymen,  or  the  major  part  of  them  in 
vestry,  shall  have  power  from  time  to  time,  to  make  rules 


20      Ecclesiastical  Laiv  in  the  State  of  Neiv  York. 

and  ordinances  for  the  good  discipline  and  weal  of  the 
members  of  the  said  church  and  corporation,  as  they,  or 
the  major  part  of  them  shall  see  fit,  hut  not  repug-nant  to 
the  laws  of  England  or  of  the  Province.  Such  rules,  etc,  to 
be  entered  in  a  book,  or  books,  to  be  kept  for  that  purpose. 

(17.)  ConfirmatiGn  of  Title.  It  proceeded  to  grant,  ratify 
and  confirm  unto  the  said  "  Rector  and  inhabitants  of  the 
Parish  of  Hempstead,  in  communion  of  the  Church  of 
England,  as  by  law  established,  and  their  successors,"  the 
church  and  ground  on  which  it  stood,  and  which  doth  be- 
long to  the  same,  containing  about  half  an  acre  of  land ; 
and  the  parsonage-house  and  lot  commonly  known  as  the 
parsonage-house  lot,  in  the  town  of  Hempstead  aforesaid, 
now  in  possession  of  the  said  Robert  Jenner  and  his  suc- 
cessors forever,  rectors  of  the  said  church  — to  have  and  to 
hold  the  premises  unto  the  said  rector,  etc.  fas  above,)  to 
their  only  proper  use  and  behoof  forever.  To  be  holden  in 
fee  and  common  socage  of  our  Manor  of  East  Greenwich 
in  the  County  of  Kent,  paying  annually  on  the  feast  of  the 
Annunciation,  at  the  city  of  New  York,  the  annual  rent  of 
one  shilling,  current  money  of  the  Province. 

I  have  marked  the  various  clauses  of  this  charter  by  num- 
bers, and  proceed  to  some  observations  upon  them. 

(1.)  It  is  shown  in  the  preamble  of  the  charter  of  St. 
George's  Church,  Hempstead,  that  the  church  had  already 
a  rector.  Thus  the  ecclesiastical  organization  was  so  far 
complete.  The  same  is  found  in  the  charter  of  Grace 
Church,  Jamaica.  In  the  charter  of  St.  George's,  Flush- 
ing, it  is  recited,  that  the  three  churches  of  Jamaica, 
NewtoAvn,  and  Flushing,  had  but  one  pastor  to  officiate 
among  them,  and  the  inconvenience  arising  from  this  is 
stated.  The  petition  is  by  inhabitants  of  the  particular 
places  respectively. 

(2.)  Members.  A  very  marked  feature  of  this  charter  is, 
that  the  clause  which  constitutes  the  corporation  is  —  Rob- 
ert Jenner,  etc.,  —  and  the  rest  of  the  communicants  of  the 
said  church  in  the  parish  of  Hempstead  aforesaid,  and  their 
successors,  communicants  of  the  said  church  shall  be,  etc., 


Charters  to   Churches  of  the  Church  of  Ewjland.     21 

—  by  the  name,  etc.  In  no  other  charter  that  I  have  seen 
is  this  phrase  to  be  found.  In  general,  the  language  is 
merely  "  in  communion  of  the  Church  of  England  as  by  law 
established."  This  subject  is  considered  hereafter  under 
subdivision  10,  "  Elections." 

(3.)  Title.  The  title  given  in  these  charters  varies  con- 
siderably. That  to  the  church  in  Hempstead  we  have  seen 
is,  "  The  Rector  and  Inhabitants  of  the  said  Parish  of 
Hempstead,  in  Queens  County,  on  Long  Island,  in  commun- 
ion of  the  Church  of  England  as  by  law  established."  That 
of  Grace  Church,  Jamaica,  "  The  Rector  and  Inhabitants 
of  the  Parish  and  Township  of  Jamaica,  in  Queens  County, 
in  communion  with  the  Church  of  England,"  etc.  That  of 
St.  George's,  Flushing,  is  —  "  The  Inhabitants  of  the  Town- 
ship of  Flushing,  in  Queens  County,  in  communion  of  the 
Church  of  England  as  by  law  established."  That  of  St. 
Peter's,  Westchester,  "  The  Rector  and  Inhabitants  of  the 
borough  town  of  Westchester,  in  communion,  etc. ;  "  of  St. 
Andrew's,  Richmond,  "  The  Minister,  Church- Wardens,  and 
Vestrymen  of  St.  Andrew's  Church,  in  the  County  of  Rich- 
mond ; "  of  Rye,  "  The  Rector  and  Inhabitants  of  the 
Parish  of  Rye,"  etc.;  of  New  Rochelle,  "  The  Minister  and 
Members  of  Trinity  Church,  New  Rochelle,  in  the  County 
of  Westchester,  in  communion  of,"  etc.  ;  of  Poughkeepsie, 
"  The  Rector  and  Inhabitants  of  Poughkeepsie,  Dutchess 
County,  in  communion,"  etc. 

(4.)  Power  to  hold  Lands.  The  clause  authorizing  the 
acquisition  and  holding  of  real  estate  and  personal  property 
is  almost  the  same  in  all  the  charters,  with  the  exception 
of  the  limit  of  annual  value,  which  varies. 

As  to  this  limitation  it  is  well  settled,  that  it  furnishes 
the  rule  of  value  only  at  the  time  of  the  acquisition.  If  by  the 
course  of  time  and  contingencies,  the  property  has  increased 
to  any  extent,  the  charter  and  grant  will  not  be  affected. 

If  they  could  take  by  Devise.  There  is  one  important 
question  under  these  charters.  Whether  the  churches  so  in- 
corporated before  the  Revolution,  could  take  real  estate  by 
devise  ? 


22     Ecclesiastical  Latv  in  the  State  of  Neiv   YorJc. 

There  was  no  Colonial  act  authorizing  clevises,  nor  any  act 
of  the  State  until  that  of  the  3d  of  March,  1787  (1  Green- 
leaf,  386).  It  is  the  received  opinion  that  the  Statute  of 
Henry  VIII.,  or  Statute  of  Wills,  was  in  force  here.  The 
whole  question  is  examined  post,  chapter  16,  §  4,  and  an  at- 
tempt made  to  prove  that  the  Statute  of  Elizabeth  pre- 
vailed, and  hy  force  of  that  statute  devises  were  valid,  until 
the  Act  of  March  3d,  1787,  our  own  Statute  of  Wills. 

(5-6.)  The  provisions  of  this  charter  contained  in  subdi- 
visions 5  and  6  are  of  great  importance.  It  will  be  seen,  that 
a  call  of  a  vestry  meeting,  and  the  transaction  of  the  busi- 
ness of  the  church  in  it,  depends  upon  the  rector,  or  if  ab- 
sent by  reason  of  sickness,  then  one  warden,  witli  the  rec- 
tor's assent,  may  call  a  meeting,  and  perform  the  business 
of  the  church. 

And  again,  in  case  of  a  vacancy,  or,  if  the  rector  absent 
himself  from  his  parish,  the  acts  of  the  warden  and  a 
majority  of  the  vestrymen  are  valid. 

It  is  obvious,  that  the  absence  from  the  parish  must  be 

a  wilful  abandonment  of  his  duty  there,  or  an  absence  so 

protracted  and  unexplained,  as  to  warrant  such  conclusion. 

With  this  qualification,  the  great  principle  of  the  English 

law  of  rectorial  authority  is  fully  observed. 

"  The  minister  is  not  in  consideration  of  law  a  mere  indi- 
vidual of  a  vestry.  On  the  contrary,  he  is  always  described 
as  the  first  and  as  an  integral  part  of  the  parish.  He  is  de- 
nominated Prceses  Ecclesiasticus,  Bector  Parochiw.'"  The  par- 
ish in  vestry  is  described  as  "  The  Minister,  Church-ward- 
ens and  Parishioners  in  vestry  assembled."  With  us  it 
w^ould  be  vestrymen  instead  of  parisliioners.  His  right  to 
preside  is  undoubted.     (Wilson  v.  Mackmath,  3  Phill.  67.) 

In  The  Queen  v.  Doyly,  (4  Perry  and  Davidson,  58,)  it 
was  held  that  "  the  president  of  the  vestry  (the  rector  if 
present)  has  authority  to  regulate  the  proceedings ;  to  de- 
cide what  they  shall  be,  so  as  to  insure  the  voters  of  the 
parish  a  reasonalde  time  to  vote ;  to  adjourn  the  poll  if  he 
see  fit,  and  to  do  all  necessary  acts,  being  amenable  to  a 
court  of  justice." 


Charters  io  Churches  of  the   Church  of  England.     23 

But  under  our  law  fixing  a  day  for  an  election,  there  can 
be  no  adjourumeut  to  any  other  day.  It  may  be  from  one 
hour  to  another  on  the  same  day. 

This  rule  is  even  more  absolutely  recognized  in  the  charter 
of  St.  Peter's,  Westchester :  "  We  do  ordain  that  the  said 
rector,  and  one  of  the  church-wardens  for  the  time  being, 
together  with  a  majority  of  the  vestrymen  of  the  said 
church,  being  met  in  vestry,  shall  have  power  and  author- 
ity, by  a  majority  of  their  voices,  to  do,  etc.,  and  to  direct, 
order  and  manage  the  business  of  such  corporation." 

The  provision  in  the  charter  of  the  church  at  Rye  is  similar. 

In  such  cases  the  rector's  presence  is  essential.  He  has 
the  right  to  preside,  an  equal  vote,  and  there  are  sometimes 
cases  (as  hereafter  shown),  though  rare,  of  a  casting  vote, 
in  the  sense  of  a  double  vote. 

But  there  are  two  charters,  perhaps  more,  which  present 
a  marked  exception  to  the  English  law. 

The  charter  of  Trinity  Church,  New  Rochelle,  after  pro- 
viding that  there  should  be  one  minister  of  the  Church 
of  England,  two  church-wardens,  and  six  vestrymen,  de- 
clares :  "  Which  minister  and  church- wardens,  or  any 
two  of  them,  together  with  the  vestrymen,  or  the  major  part 
of  them  for  the  time  being,  shall  have,  and  are  hereby  vested 
with,  full  power  and  authority  to  dispose,  order  and  govern 
the  business  and  affairs  of  and  concerning  such  church,  and 
concerning  all  such  lands,  tenements  or  hereditaments,  real 
or  personal  estate,  as  shall  or  may  be  purchased  or  acquired 
for  the  use  thereof  as  aforesaid." 

And  so  by  another  section  :  "  We  ordain  and  direct, 
that  the  minister  and  church-wardens  of  the  said  church 
for  the  time  being,  or  any  two  of  them,  together  with  the 
said  vestrymen,  or  the  major  part  of  them,  shall  be,  and  by 
these  presents  are,  authorized  and  empowered,  to  consult, 
advise  and  consider,  and  by  a  majority  of  voices  to  do, 
direct  and  transact  the  interests,  business  and  affairs  of  the 
said  church,  and  to  hold  vestries  for  that  purpose." 

So  in  the  case  of  the  charter  of  St.  George's,  Flushing. 
"  The  minister  and  church- wardens  of  the  said  church  for 


24      Ecclesiastical  Law  in  the  State  of  New   York. 

the  time  being,  or  any  two  of  them,  shall  and  may  from  time 
to  time,  call  aud  assemble  the  said  minister,  church-ward- 
ens, and  vestrymen,  or  the  greater  number  of  them,  the 
said  vestrymen ;  which  said  minister  and  church-wardens, 
or  any  two  of  them,  together  with  the  said  vestrymen,  or 
the  major  part  of  them,  are  authorized  and  empowered  to 
consult,  advise  and  consider,  aud  by  a  majority  of  voices,  to 
do,  manage  and  transact,  and  carry  on,  the  business  and 
affairs  of  the  said  church,  and  to  hold  vestries  for  that  pur- 
pose." 

The  charter  of  St.  James'  Church,  Newtown,  9th  Septem- 
ber 1761,  is  alike  in  this  respect. 

Thus  the  minister  and  church-wardens  are  put  together 
collectively.  Any  two  of  these  —  therefore  two  wardens  — 
with  a  majority  of  the  vestrymen,  are  competent  to  hold 
vestries,  and  transact  business. 

In  the  case  of  a  contested  election  in  the  church  of  New 
Rochelle  (1864),  the  present  writer's  opinion  was  given  that 
such  was  necessarily  the  meaning  of  the  charter  of  that 
church.  The  royal  charters  underwent  the  supervision  of 
the  Attorney-General.  The  lawyers  of  that  day  did  not  use 
language  on  such  matters  loosely  and  unadvisedly.  The 
deviation  from  the  usual  phraseology  and  the  general 
English  rule,  must  have  been  intended.  I  was  informed 
that  some  of  the  chief  founders  of  the  Episcopal  Church  at 
New  Rochelle  were  French  Protestants,  and  this  clause  of 
the  charter  was  an  offering  to  their  principles,  for  the  pur- 
pose of  securing  them  to  the  Church,  at  the  surrender  of  a 
true  Church  rule. 

(10.)  Elections  and  Qualifications.  The  charter  of  St. 
George's,  Hempstead,  I  have  before  noticed  as  peculiar  upon 
the  qualification  of  voters  at  the  annual  elections.  They  are 
to  be  "  communicants  of  the  said  church  for  the  time  be- 
ing."    No  other  qualification  is  prescribed. 

If  we  turn  to  the  21st  Canon  of  the  English  Church  of 
1603,  in  force  when  this  charter  was  granted,  we  nuiy  con- 
clude, that  receiving  the  communion  three  times  in  the 
year  preceding,  is  sufficient.  I  am  not  prepared  to  say  that 
once  would  not  suffice. 


Charters  to  Churches  of  the   Church  of  England.     25 

It  is  clear  that  the  voter  must  be  a  commuuicaut  of  that 
identical  church,  within  its  walls,  at  its  separate  altar.  A 
commuuicaut  of  a  particular  church,  is  a  member  of  such 
church.  Commuuing-  iu  it  two  or  three  times  a  year,  and 
communing  elsewhere  as  frequently,  does  not  make  him  a 
member,  and  he  cannot  be  a  voter.  But  this  is  subject  to 
the  qualiticatiou,  that  communing-  elsewhere  when  tempo- 
rarily absent,  would  not  invalidate  his  right. 

It  seems  to  me  no  question  of  difficulty  can  arise  as  to  the 
qualifications  of  voters  in  this  church  except  in  the  frequent 
case  of  a  communing-  in  the  church  for  a  large  portion  of 
the  year,  and  elsewhere  for  an  equal,  or  nearly  equal  por- 
tion. The  solution  of  this  question  will  depend  upon  the 
same  rules  as  the  decision  of  the  question  of  inhal)itancy,  as 
hereafter  fully  stated.  The  substantial  inquiry  is,  which  is 
the  real  domicile  or  home.  His  church  communion  will 
follow  his  civil  abode. 

The  position  is  strengthened  by  the  language  used  in 
constituting  the  corporate  body,  ''  Communicants  of  the 
said  church  in  the  parish  of  Hempstead  aforesaid." 

After  careful  examination,  and  some  doubt,  I  think  that 
inhabitancy  within  the  parish  is  also  necessary  for  the  qual- 
ification of  a  voter.  The  doubt  arises  from  the  ftict  that  iu 
the  clause  as  to  the  electors  at  the  annual  election,  no  term  is 
used,  except,  "  communicants  of  the  said  church  for  the  time 
being,"  and  by  the  English  law  there  could  be  a  parishiouer 
without  residence,  as  by  holding  a  freehold  estate  withiu 
the  parish  limits.  On  the  other  side  the  corporators  are 
the  rector  and  inhabitants  of  the  parish  of  Hempstead, 
and  clear  language  must  be  used  to  extend  the  right  to  vote 
beyond  the  corporators.  Parishioners  may  be  a  larger  term 
than  corporators. 

If  this  is  so,  then  an  inhabitant  of  the  parish  of  Hemp- 
stead is,  I  presume,  the  same  as  an  inhabitant  of  the  town 
of  Hempstead ;  and  as  to  the  meaning  of  this  phrase,  see 
post,  this  subdivision.  Of  course  ownership  of,  or  hiring 
a  pew  or  seat,  without  being  a  communicant,  will  not  suf- 
fice. 


26      Ecclesiastical  Law  in  the  State  of  New   YorJc. 

But  in  general  the  charters  are  simihir  in  this  particular 
to  that  of  St.  Andrew's,  Richmond.  "  It  shall  be  lawful  for 
the  inhabitants  of  the  said  island  in  communion  of  the 
Church  of  England  as  by  law  established,  to  meet  and  choose 
two  church-wardens,  etc.  That  of  the  church  at  Flush- 
ing, and  at  Newtown,  are  alike,  that  is,  the  inhabitants 
of  such  towns  respectively,  in  communion,  etc. 

It  may  be  here  noticed  that  an  act  was  passed  the  13th 
day  of  March,  1843,  by  which  the  charter  of  Grace  Church, 
Jamaica,  was  amended  as  follows  :  "  In  addition  to  the  per- 
sons now  qualified  to  vote  at  the  elections,  and  eligible  to 
the  offices  hereafter  mentioned,  it  shall  be  lawful  for  all 
other  male  persons,  of  full  age,  of  the  congregation  of 
Grace  Church,  in  the  village  and  town  of  Jamaica,  in  com- 
munion with  the  Protestant  Episcopal  Church  of  this  State, 
vvho  shall  have  belonged  to  such  church  or  congregation, 
for  the  last  twelve  months  preceding  such  election,  and 
who  shall  have  been  baptized  in  the  Episcopal  Church,  or 
shall  have  been  received  therein,  either  by  the  rite  of  con- 
firmation, or  by  receiving  the  Holy  Communion,  or  by  pur- 
chasing or  hiring  a  pew  or  seat  in  said  church,  or  by  some 
joint  act  of  the  parties  and  the  rector,  whereby  they  have 
attached  themselves  to  the  Protestant  Episcopal  Church, 
at  any  election  for  wardens  and  vestrymen  of  said  church, 
to  vote  for  and  be  eligible  as  such  wardens  and  vestry- 
men." 

We  have  then  two  material  questions  to  consider  under 
these  colonial  charters,  as  to  voters.  What  is  the  interpre- 
tation of  inhabitant  of  the  town  or  township,  and  what  is 
the  sense  of  being  "  in  communion  with  the  Church  of 
England,"  where  the  name  has  not  been  changed  ;  and  of, 
"  in  communion  with  the  Protestant  Episcopal  Church,  in 
the  State  of  New  York,"  where  it  has  been. 

Inliahitant.  Inhabitancy  is  a  term  of  large  and  not  easily 
defined  meaning.  It  cannot  be  said  to  be  strictly  synony- 
mous with  domicile.  It  may  be  in  one  place  when  the 
domicile  either  of  birth  or  adoption  has  been  in  another 
and  has  not  been  lost.     It  may  at  least  be  said,  that  a  fixed 


Charters  to  Churches  of  the  Church  of  England.     27 

residence,  a  personal  dwelling  in  a  place,  is  an  essential 
element.  This  would  not  be  inconsistent  with  temporary 
absences  for  business  or  pleasure;  but  the  return  to  the 
abode,  and  the  animus  morandi  in  the  place,  enter  into  and 
form  an  essential  part  of  the  meaning.^ 

The  Incola  of  the  Latin  is  the  Parochias  of  the  Greek ; 
and  Caius  defines  Incolam  to  be  the  place  where  one  estab- 
lishes his  abode  [domicilium) .  Domat  includes  in  the  term 
personal  residence,  the  attendance  upon  religious  services 
on  festival  days,  the  bearing  a  part  in  the  public  charges, 
and  a  sharing  public  privileges.  ("  Civil  Law,"  vol.  ii.  p. 
485.  IV.) 

"  A  mere  lodger,"  says  Lord  Hardwicke,  "  cannot  be  said 
to  be  an  inhabitant."     (Cases  Temp.  Hard.  308.) 

In  The  Attorney-General  v.  Parker  (3  Atk.  376),  the 
language  of  a  deed  was,  "  The  Parishioners  and  Inhabitants 
of  Clerkenwell."  "  Parishioners,"  said  Lord  Hardwicke, 
"  takes  in  not  only  inhabitants  of  the  parish,  but  occupiers 
of  lands  that  pay  rates  and  duties,  though  not  residents. 
Inhabitants  is  a  still  larger  word,  and  takes  in  housekeep- 
ers, as  for  instance,  those  who  have  gained  a  settlement, 
and  so  become  inhabitants.  Usage  may  be  resorted  to, 
to  construe  ancient  grants.  Contemporaneous  exposition 
is  the  best  way  to  go  by."  The  custom  was  proven  of 
admitting  all  householders  to  vote. 

In  The  Attorney-General  v.  Davy  (2  Atkyn's  212),  the 
case  was  this.  By  a  charter  of  Edward  VI.  twelve  persons 
were  incorporated  to  elect  a  chaplain  of  the  church  at  Kir- 
ton,  and  three  of  them  were  empowered  to  choose  a  chap- 
lain for  the  church  of  Sanford  within  the  parish  of  Kirton, 
watli  the  consent  and  approbation  of  the  major  part  of  the 
inhabitants  of  Sanford.  As  reported  in  Atkyn's,  the  only 
point  decided  was,  that  two  of  the  three  persons  could  do 
the  corporate  act.  But  in  The  Attorney-General  v.  Parker, 
{ante,)  his  lordship  states,  that  under  this  charter  he  had 

1  Bouvier's  Lmo  Did.  in  verbo,  Frost  v.  Wisbie,  19  Wendell,  11 ;  Bartlett  v. 
The  City  of  New  York,  5  Sandf.  Supr.  Ct.  Reps.  44  ;  Matter  of  Wragby,  8 
Wendell,  134 ;  Isham  v.  Gibbons,  1  Bradford,  69. 


28      Ecclesiastical  Laiv  in  the  State  of  New   York. 

held  that  inluihitants  ought  to  be  restrained  to  persons 
paying"  scot  and  lot.  Lord  Eldon  has  spoken  of  the  uncer- 
tainty of  this  phrase,  and  its  different  meaning's  (10  Vesey's 
Rep.  339).  If  we  look  into  the  law  dictionaries,  we  find, 
that  at  least  this  is  clear,  that  it  comprises  a  contribution 
in  value  to  some  parish,  town,  or  borough  objects. 

In  Rex  V.  AUard  (4  Barn.  &  Cress.  772),  it  is  said,  that 
the  term  varies  in  its  import,  according  to  the  subject  to 
which  it  is  applied.  A  non-resident  occupier  of  lands  is  not 
an  inhabitant. 

The  citse  of  The  King  v.  Davie  {6  Adol.  &  Ellis,  374),  is 
important.  A  charter  of  Edward  VI.  granted  that  the  in- 
habitants of  the  ville  of  S.  within  the  parish  of  C.  should 
have  a  chapel  for  such  inhabitants,  with  a  chaplain  to  be 
paid  out  of  the  profits  of  the  vicarage  of  C,  and  that  they 
should  elect  chapel  wardens.  That  certain  governors,  ap- 
pointed in  the  mode  prescribed,  with  the  assent  of  a  major- 
ity of  the  inhabitants  of  the  said  ville,  should  nominate  and 
appoint  the  chaplains.  Upon  a  nomination  and  notice  to 
the  inhabitants  to  meet,  for  the  purpose  of  assenting  or  dis- 
senting, the  resident  payers  of  church  and  poor  rates  were 
allowed  to  vote.  Some  persons  not  rated  tendered  votes. 
Proof  was  given  of  the  course  in  two  previous  elections  iu 
1771  and  1814,  and  evidence  of  aged  persons,  as  to  the  usage 
being  to  admit  only  those  who  paid  rates.  It  was  held, 
that  from  the  text  of  the  charter  and  usage,  the  term 
inhabitants  might  be  construed  to  be  limited  to  the  partic- 
ular class. 

In  some  charters  a  power  to  vote  or  assess  for  church  re- 
pairs, etc.,  was  conferred.^  And  some  of  these  authorities 
would  indicate  the  sense  in  which  the  term  may  have  been 
used,  to  be  resident  rate-payers. 

But  this  right  may  be  treated  as  surrendered  or  su[)er- 
seded.  Indeed  it  was  doubtful  if  a  charter  alone  could  con- 
fer this  power,  which  is  a  power  in  substance  of  taxation. 

We  are  led  back  to  other  definitions.  It  may  be  safely 
stated  that  a  mere  lodger  or  sojourner  for  a  time,  without 
1  Trinity  Church,  Reformed  Dutch  Church,  and  a  few  others. 


Charters  to   Churches  of  the   Church  of  England.     29 

the  indication  of  the  animus  morancU,  the  intent  to  make  it 
a  home,  is  not  enouj^h.  A  permanent  abode  and  subjection 
to  public  taxes  and  duties  is  enough.  There  may  be  cases 
of  difficulty  between  these  two  points.  It  will  be  remem- 
bered that  if  votes  are  illegally  admitted  or  rejected,  it  will 
only  invalidate  the  election,  when  a  different  result  would 
have  been  reached. 

In  Ennes  v.  Smith,  14  Howard's  U.  S.  Rep.  400,  it  is 
said,  "  There  must  l)e  actual  residence  within  the  place, 
with  the  intention  that  it  is  to  be  permanent." 

Towns.  The  charters  quite  generally  require  the  party 
to  be  an  inhabitant  of  a  particular  designated  town  or 
township. 

These  towns  or  townships  in  many  cases,  particularly  on 
Long  Island,  were  constituted  by  Dutch  patents,  and  are 
unchanged  in  some  cases  to  this  day.  Bolton's  "  History  of 
Long  Island  "  and  Broadhead's  "  History  of  New  York  "  af- 
ford information  on  this  point.  The  boundaries  of  the  towns 
are  settled  by  acts  of  the  legislature.  They  are  defined  in 
the  laws  of  1801,  and  the  Revised  Statutes  (vol.  iii.)  con- 
tain them  fully. 

It  may  be  observed  that  the  limits  would  be  the  same  as 
the  limits  at  the  date  of  the  charters  respectively,  whether 
subsequently  changed  or  not. 

In  Communion,  etc.  Wliat  is  the  sense  of  being  in  com- 
munion of  or  with  the  Church  of  England  ? 

First,  it  is  to  be  examined  as  to  charters  where  the  title 
has  not  been  changed,  but  remains  as  it  was  in  the  charter. 

The  communion  of  the  Church  of  England,  in  the  mere 
ecclesiastical  sense  —  the  union  or  identity  of  faith,  worship, 
orders,  and  observances,  is  not  touched  or  varied  by  anything 
in  our  Revolution,  our  Constitution,  or  our  Laws.  The  ex- 
ceptions are  few,  and  are  as  follows,  or  of  the  same  nature. 

Whatever  is  inconsistent  with  the  Constitution  of  1777, 
or  the  laws  of  1784  connected  with  a  supremacy  of  such 
Church,  or  the  power  of  the  Bishop  of  London  within  the 
limits  of  the  State,  is  abrogated.  But  if  exclusively  confined 
to  mere  spiritual  ecclesiastical  matters,  a  church  might  be 


30      Ecclesiastical  Law  in  the  State  of  New   York. 

incorporated  to-morrow,  under  our  law,  by  the  name  of  St. 
James,  in  the  city  of  New  York,  in  communion  of  the  Church 
of  England. 

But  again,  the  Protestant  Episcopal  Church  is  the  suc- 
cessor of  the  Church  of  England.  It  is  very  important  to 
understand  this  proposition. 

When  any  such  chartered  church  has  allied  itself  with 
the  Protestant  Episcopal  Church  of  the  United  States,  by 
uniting  in  the  Diocesan  Convention,  it  accedes  to  the  ex- 
plicit declaration  of  that  Church,  "that  it  has  not  intended 
to  depart  from  the  Church  of  England  in  any  essential  point 
of  doctrine,  discipline,  or  worship,  or  further  than  local  cir- 
cumstances require."  So  the  avowal  and  admission  of  each 
such  church,  and  of  each  member  of  the  same,  is  clearly, 
that  the  Protestant  Episcopal  Church  is  in  communion  of 
the  Church  of  England ;  is  the  successor  of  such  church, 
varied  in  some  matters.  A  court  of  justice  would  act  upon 
such  an  admission  and  recognition. 

Some  authorities  may  be  usefully  noticed  bearing  upon 
this  point. 

In  Mason  v.  Mulcater  (6  Wheatou,  454),  it  was  decided,  — 

1.  That  by  the  law  in  Virginia  prior  to  the  Revolution,  each 
parish  was  authorized  to  elect  a  vestry,  twelve  persons,  to 
manag-e  the  parochial  affairs  ;  and  however  numerous  might 
be  the  churches  in  the  parish,  the  same  vestry  had  charge 
of  them  all.  There  were  two  churches  within  the  parish 
of  Fairfax  :  the  Church  of  Alexandria  and  the  Falls  Church  ; 
but  they  were  under  one  rector  and  one  vestry.  In  1819, 
a  vestry  was  chosen  by  persons  professing  to  belong  to  the 
Falls  Church,  and  to  that  portion  of  the  parish  of  Fairfax 
not  included  within  the  District  of  Columbia. 

2.  Before  the  Revolution,  the  Episcopal  Church  was  the 
established  church  in  Virginia,  and  all  the  parishioners 
were  liable  to  be  rated  for  parish  taxes,  and  were  entitled  to 
vote  in  the  choice  of  the  vestry.  But  the  Church  estab- 
lishment fell  with  the  Revolution,  and  the  compulsory  power 
of  taxation  ceased ;  and  as  no  person  could  be  compelled 
to  worship  in  the  Episcopal  Church,  or  pay  taxes  for  its  sup- 


Charters  to   Churches  of  the   Church  of  England.     31 

port,  the  parishioners  of  the  Episcopal  Church,  in  the 
ecclesiastical  sense  of  the  term,  afterwards  consisted  only 
of  the  Episcopal  contributors  and  members. 

3.  The  Statute  of  1786,  chap.  12,  saved  tlie  management 
of  their  property  and  regulation  of  their  discipline,  according 
to  the  rules  of  their  own  sect,  to  all  religious  societies.  By 
the  Canons  of  the  Episcopal  Church,  subsequently  passed, 
the  right  to  elect  vestries  is  confined  to  the  freeholders  and 
housekeepers  who  are  members  of  the  Protestant  Episcopal 
Church  within  the  parish,  and  regularly  contribute  towards 
the  support  of  the  minister,  and  to  the  common  exigencies 
of  the  Church  within  the  parish. 

4.  That  the  Episcopal  Church  at  Alexandria  then  known 
as  Christ  Church,  was  the  regular  vestry  in  succession  of 
the  parish  of  Fairfax;  and  in  connection  with  the  minister, 
had  the  care  and  management  of  the  temporalities.  A  sale 
of  church-lands,  with  the  assent  of  the  minister,  under  a 
judgment  of  the  court,  conveyed  a  g'ood  title. 

In  The  Town  of  Pawlett  v.  Clark  (9  Cranch  292),  Justice 
Story  says :  "  The  Church  of  England,  so  familiar  in  our  laws 
and  judicial  treatises,  is  nothing  more  than  a  compendious 
expression  for  the  religious  establishment  of  the  realm,  con- 
sidered in  the  aggregate.  In  this  sense  it  is  said  to  have 
peculiar  rights  and  privileges,  not  as  a  corporation,  but  as  an 
ecclesiastical  institution."  So  it  is  used  in  Magna  Charta, 
chapter  1,  where  it  is  declared,  Ecclesia  Anglicana  libera  sit, 
and  haheat  omnia  jura,  integra  et  Ubertates  suis  illwsas. 

And  it  was  held,  that  where  there  was  a  grant  of  land,  in 
part  for  the  use  of  the  Church  of  England,  an  Episcopal 
church  erected  by  the  Crown  before  the  Revolution,  or  by 
the  State  since,  would  have  been  entitled  to  take.  But 
there  being  none  such,  the  land  was  at  the  disposal  of  the 
State,  and  a  grant  to  a  town  was  valid. 

Considering  that  the  phrase  "  in  communion  of  the 
Church  of  England,"  where  the  title  of  a  church  is  un- 
changed, is  the  same  for  the  matters  now  treated  of,  as 
"in  communion  of  the  Protestant  Episcopal  Church,"  the 
question  is.  What  is  the  sense  and  extent  of  the  term  ? 


32      Eccle&iastical  Lmv  in  the  State  of  Netu   York. 

Of  course  the  actual  reception  of  the  Sacrament  is  such 
communion.  This  means  reception  in  the  parish  church 
of  the  place  of  which  the  persons  are  inhabitants,  or  its 
chapels.  By  Canons  21  and  22  of  1603  the  Holy  Commun- 
ion was  to  he  administered  in  every  parish  church  and 
chapel,  so  that  each  parishioner  might  communicate  thrice 
in  every  year ;  and  every  lay  person  was  bound  to  receive 
the  communion  thrice  in  each  year.  Canon  27  strictly 
prescribes  the  reception  in  the  communicant's  own  parish 
church. 

But  I  apprehend  this  is  not  the  exclusive  sense.  Some- 
thing short  of  this,  will  place  a  person  in  communion. 

The  Prayer-Book  uses  the  phrase  "  in  communion  of  the 
Catholic  Church."  Stillingfleet  calls  communion  "  a  union 
in  the  common  worship  of  a  church."  And  Calvin,  after 
speaking  of  a  church  retaining  the  Word  of  God  and  use  of 
sacraments,  says :  "  It  is  a  dangerous  temptation  to  think 
of  separating  from  such  a  church,  the  communion  whereof 
is  never  to  be  rejected,  so  long  as  it  continues  the  true  use 
of  the  Word  and  Sacraments."     (Inst.  Lib.  4,  cap.  10.) 

There  are  several  articles  of  the  Church  of  England, 
declaring  that  for  certain  offenses,  the  guilty  party  shall 
be  excommunicated  ipso  facto.  For  example, — "Whoever 
shall  affirm  that  the  form  of  God's  worship  established  by 
law,  and  contained  in  the  Book  of  Common  Prayer,  is  a  cor- 
rupt or  unlawful  worship,  or  containeth  anything  con- 
trary to  the  scripture,  shall  be  so  excommunicated."  Ar- 
ticle 4. 

Now  to  hold  and  affirm  the  converse  of  what  justifies 
excommunication,  would  establish  communion.  An  ex- 
pressed adhesion  to  the  doctrines  and  order  of  the  Prayer- 
Book  would  so  far  be  sufficient. 

Excommunication,  we  are  to  remember,  was  not  merely 
exclusion  from  the  Holy  Communion,  which  was  the  lesser 
kind,  l)ut  also  absolute  expulsion  from  the  Church,  a  limi- 
nihus  mcrw  matris  ecdedw,  which  was  the  greater.  (Bishop 
Tomline,  Spelman's  Glossary  in  verho.) 

Conformity,  as  defined  in  the  English  law,  may  be  com- 


Charters  to  Churches  of  the  Church  of  England.     33 

muuion,  in  the  sense  of  that  law.  Conformity  to  our  own 
worshii),  order,  constitution,  and  canons,  proven  by  open 
avowal  or  acts  of  plain  adhesion,  may  be  enough  in  our 
Church. 

Again,  in  the  ministration  of  baptism  in  our  own  and  in 
the  English  Book  of  Common  Prayer,  thanks  are  given  that 
the  baptized  child  is  incorporated  into  the  Holy  Church; 
and  in  the  case  of  adults,  that  he  is  grafted  into  the  l)ody 
of  Christ's  Church."  Clearly  both  the  child  and  the  adult 
are  thus  in  communion  of  the  Church,  and  without  par- 
taking of  the  Holy  Eucharist.  Confirmation  is  communion 
in  the  sense  we  are  discussing ;  but  where  confirmation  has 
been  given  upon  one  baptized  according  to  the  order  of  the 
Church,  it  adds  nothing  to  the  qualification. 

While  the  theological  meaning  may  thus  be  satisfied, 
something  more  is,  I  apprehend,  included.  The  union  or 
communion  must  be  evinced  by  an  outward  act.  Attend- 
ance upon  the  public  worship  was  such  an  act.  This  was 
enjoined  to  be  at  the  parish  church  or  chapel  by  the  Stat- 
ute of  5  and  6  Edward  VI.,  by  that  of  1  Elizabeth,  cap.  2, 
and  by  the  9th  Canon  of  1603.  The  Act  of  31  George  III. 
continued  the  former  acts  in  force,  except  as  to  persons 
who  came  within  the  Toleration  Acts  of  1  William  and 
Mary. 

Attendance  at  a  customary  chapel  within  the  parish  was 
a  compliance  with  these  requisitions. 

Another  question  arises  for  consideration.  Lay  baptism, 
as  it  is  termed,  cannot  of  itself  be  the  entering  into  com- 
munion with  the  Church.  It  is  not  being  baptized  tJierein. 
But  the  communion  may  be  formed,  notwithstanding  this, 
though  not  by  it. 

The  communion,  I  presume,  may  lawfully  be  adminis- 
tered to  those  who  have  received  a  lay  baptism.  There 
is  also  authority  to  prove  that  confirmation  may  be  admin- 
istered upon  such  baptism. 

By  a  clause  of  the  15th  Canon  of  1798  of  the  duty  of 
ministers  to  keep  a  register,  and  which  clause  remained 
in  force  until  1832,  it  was  provided,  "  And  no  minister  shall 


34      Ecclesiastical  Law  in  the  State  of  New  York. 

place  on  the  said  list  the  names  of  any  persons  except  those 
who,  on  due  inquiry,  he  shall  find  to  have  been  baptized  in 
this  Church,  or  who,  having  been  otherwise  baptized,  shall 
have  been  received  into  this  Church,  either  by  the  holy  rite 
of  confirmation,  or  by  receiving  the  holy  communion,  or  by 
some  other  joint  act  of  the  parties  and  of  a  minister  of  this 
Church,  whereby  such  persons  shall  have  attached  them- 
selves to  the  same."  (See  Wheatley's  Book  of  Common 
Prayer,  p.  394.) 

Chapels  of  Ease.  There  is  a  power  attached  to  a  parochial 
church  of  importance.  It  is  the  right  to  establish  chapels 
of  ease,  as  they  are  termed  in  the  English  law.  Such  chap- 
els arose  from  the  increase  of  the  worshipers  beyond  what 
the  parish  church  could  support,  or  for  the  convenience  of 
parishioners  residing  at  a  great  distance  from  it.  The  theory 
of  such  chapels  was  subordination  to  the  mother  church, 
shown  by  the  duty  of  resorting  to  it  for  baptism,  the  com- 
munion, marriages,  and  burials.  They  were  also  bound  to 
account  to  the  rector  for  all  oblations,  fruits,  and  tithes,  and 
by  attending  the  parish  church  on  certain  holy  days.  The 
curate  was  generally  appointed  by  the  rector,  who  could 
officiate  himself  whenever  he  chose.  The  support  of  the 
curate  and  chapel  fell  upon  the  mother  church.  Modifica- 
tions of  these  rules  arose  by  license  or  prescription. ^  For 
example  in  Line  v.  Harris  (1  Lee's  Rep.  146),  the  general 
rule  that  the  nomination  to  the  curacy  belonged  to  the 
incumbent  was  recognized,  and  an  exception  was  established 
by  custom  and  license.  (Burns'  Ecc.  Law,  ed.  1842,  vol.  i. 
p'.  296.) 

The  chapels  of  St.  George  and  St.  Paul,  erected  in  the 
city  of  New  York,  and  the  chapel  at  Factoryville  in  Rich- 
mond County,  were  chapels  of  this  character.  No  doubt 
there  were  others.  They  were  under  the  rector  of  the  parish 
church,  who  employed  ministers  as  assistants  or  not,  accord- 
ing to  circumstances.  They  had  no  independent  minister; 
but  the  right  to  baptize  and  administer  the  communion 
was  attached  to  them.     They  were  supported  partly  by  the 

1  Gibson's  CodeXy  p.  292. 


Charters  iQ   Churches  of  the  Church  of  England.     35 

parent  church,  partly  by  contributions  of  the  worshipers  in 
them.  Chapels  of  this  nature  did  not  cease  to  be  chapels 
of  ease  by  acquiring  the  right  of  administering  the  sac- 
craments. 

The  consent  of  the  ordinary,  the  patron,  and  the  incum- 
bent was  necessary  for  their  erection.  The  vestry  under 
the  charters  answer  to  the  patron.  Patronage  and  advow- 
son  was  expressly  conferred  upon  them.  The  incumbent 
was  the  rector.  The  Governor  had  the  power  of  induction, 
and  this  involved  the  lesser  authority,  and  made  him  the 
ordinary  for  such  purposes. 

But  the  worshipers  in  these  chapels  were  as  much  mem- 
bers of  the  parish  church  as  the  worshipers  there.  In  the 
case  of  a  contested  election  in  St.  Andrew's  Church,  Rich- 
mond County  (1857),  the  writer's  opinion  was  given  that  the 
attendants  upon  a  chapel  erected  by  that  church,  not  sep- 
arately organized  or  incorporated,  were,  under  the  charter,  as 
fully  entitled  to  vote  as  the  worshipers  at  the  parish  church. 

Parochial  Chapels.  But  there  was  also  known  to  the 
English  ecclesiastical  law,  what  were  termed  parochial 
churches  or  chapels.  They  possessed  the  privileges  of  bap- 
tism and  sepulture,  a  separate  minister,  and  generally  a 
separate  endowment,  often  from  the  parish  church.  The 
assent  of  the  ordinary,  the  patron,  and  incumbent  was  here 
also  required.  They  could  be  established  by  prescription, 
where  nothing  was  shown  to  repel  the  presumption  of  a 
deed. 

I  refer  to  the  cases  of  The  Attorney-General  v.  Mower- 
ton,  2  Vesey  sen.  26 ;  Morysey  v.  Hillcoat,  2  Hagg.  Ecc. 
Rep.  30;  Dent  v.  Rob,  1  Young  &  Coll.  1. 

The  case  of  Bateman  v.  Cox  (7  Bro.  Pari.  Cases,  59,  Dub- 
lin Ed.),  deserves  particular  notice.  The  peculiar  or  ancient 
parish  of  the  Church  of  Dorchester,  being  very  extensive, 
with  many  villages  or  hamlets  within  it,  remote  from  the 
mother  church,  occasioned  the  erection  of  many  chapels 
within  its  peculiar  rectory,  and  subsequent  to  the  division 
of  the  dioceses  into  parochial  cures  and  the  establishment 
of  tithes  in  the  kingdom,  some  of  these  chapels  were  inde- 


36      Ecclesiastical  Laiv  in  the  State  of  New   York. 

pendent  chapels,  endowed  with  a  revenue  in  perpetuity  for 
maintenance  of  a  priest  to  perform  divine  service,  and 
for  the  better  accommodation  of  the  inhabitants.  They 
were  allowed  the  privileges  of  sacraments  and  burials,  and 
other  parochial  rights ;  and  presentation  being  made  of  some 
of  them  by  their  founder  or  endower,  became  from  that  time 
presentative,  and  institution  was  practiced  and  allowed. 
Others,  through  the  presentation  of  their  patrons  or 
common  reputation,  had  acquired  the  character  of  parish 
churches,  and  the  hamlets  of  distinct  parishes.  The  one  in 
question  had,  besides,  the  characteristics  of  a  parish  church, 
in  having  baptisms  and  sepulture. 

There  was  no  proof  of  any  subordination  to  Fort  Balden 
as  a  mother  church,  no  right  to  seats  there,  no  contributing 
to  its  repairs,  no  resorting  thither  on  stated  days,  no  obla- 
tions paid  over,  no  oath  of  obedience  to  the  rector  or  viear, 
as  required  by  ancient  canons.^ 

"  The  Capella  Parochialis,  as  it  is  called  by  Hobart,  has  be- 
longing to  it  all  sorts  of  parochial  rights,  as  clerks,  ward- 
ens, etc. ;  all  rights  of  performing  divine  service,  baptism, 
sepulture,  etc. ;  which  is  very  strong  evidence  itself  that 
this  is  not  barely  a  chapel  of  ease  to  the  parish  to  which  it 
belongs,  but  stands  on  its  own  foundation."  (Lord  Hard- 
wicke  in  Attorney-General  v.  Mowerton,  2  Vesey  sen.  426.) 

The  assent  of  the  ordinary,  the  incumbent,  and  patron 
was  necessary  for  the  establishment  of  such  churches.  The 
patron  was  the  vestry,  the  incumbent  of  course  the  rector, 
and  the  ordinary  for  these  purposes  w^as  the  Governor.  The 
admission  of  ministers  and  establishment  of  churches  was 
vested  in  him. 

At  present,  the  consent  of  the  bishop  would  be  necessary 
for  the  ecclesiastical  organization  of  a  separate  church  of 
this  nature,  as  well  as  of  the  vestry  and  rector.  They  may 
become  incorporated  of  course  under  the  general  act. 

These  separated  churches  or  chapels,  as  they  possessed 
entire  independence  of  the  mother  church,  and  were  freed 

1  See  this   oath,  1   Burns'   Ecc.  Law,    303 ;    Constitution   of  Archbishop 
Winchester. 


Charters  to  Churches  of  the  Church  of  Eiufland.     37 

from  all  duty  to  it  and  from  its  supervisiou,  so  they  lost  all 
claim  to  its  privileges,  franchises,  or  emoluments,  and  all 
voice  in  its  g-overnment.  This  is  shown  by  the  cases  before 
cited,  and  by  The  Attorney-General  v.  St.  Cross  Hospital 
(38  Law  &  Eq.  Rep.  500).  It  would  necessarily  result  from 
separation  and  independence,  without  any  authority. 

These  churches  then  were  parochial  churches,  because 
they  were  within  the  parish  limits,  yet  entirely  disconnected 
and  independent.  So  fully  does  this  system  continue,  that 
by  an  Act  of  1  and  2  Victoria  (chapter  107),  a  parish  may  be 
divided  into  separate  parishes,  or  iuto  district  parishes,  or 
chapelries.  The  boundaries  were  to  be  fixed  and  enrolled 
in  chancery,  and  in  the  registry  of  the  diocese. 

Guided  by  these  principles,  we  are  able  to  meet  most  of 
the  questions  which  may  arise  as  to  churches  separately 
organized  and  incorporated  within  the  limit  of  a  parish 
created  by  Royal  Charter. 

And  no  point  can  be  more  clear  than  this,  that  the  right 
to  vote  at  elections  of  wardens  and  vestrymen,  and  every 
right  of  participation  in  the  management  of  the  affairs  of 
the  Mother  Church,  is  lost  and  voluntarily  surrendered.  To 
belong  at  the  same  time  to  two  independent  organized 
incorporated  churches,  is  an  impossibility.  We  have  before 
noticed  some  rules  applicable  to  cases  of  doubt.  If  the 
person's  attendance  is  about  equal  in  the  city  and  in  the 
country,  the  rule  which  indicates  his  domicile  would  de- 
termine his  place  for  voting.  Voting  at  one  place  clearly 
would  debar  voting*  at  another. 

In  the  case  of  St.  Andrew's  Church,  Richmond,  where  the 
charter  as  before  noticed  made  the  whole  island  the  parish, 
several  separate  churches  had  been  organized  and  incorpo- 
rated. In  1864  the  opinion  of  the  present  writer  was  given, 
that  persons  were  not  entitled  to  a  vote  at  the  parish  church 
of  St.  Andrew's,  who  regularly  belonged  to  such  independ- 
ent churches. 

Notice.  In  several  charters  there  is  a  clause  directing 
notice  to  be  given  in  a  particular  manner  of  the  annual 
election.     This  must  be  carefully  attended  to.    Wliere  there 


38      Ecclesiastical  Law  in  the  State  of  New   YorJc. 

is  no  such  provision,  an  election  would  not  be  invalid  with- 
out it,  the  members  being  bound  to  know  the  day  estab- 
lished by  the  charter.  A  good  custom,  however,  prevails  of 
giving  a  notice  on  the  Sunday  previous. 

Time  of  Polling.  The  period  for  which  the  poll  should  be 
kept  open  is  to  be  regulated  by  the  convenience  and  num- 
ber of  votes  to  be  taken.  Custom  here  has  a  great  influence. 
The  rule  has  been  stated  in  several  cases  that  reasonable 
time  must  be  allowed  for  the  taking  all  the  votes  proffered. 
It  would  be  illegal  to  close  the  election  while  voters  are 
ready  and  desirous  of  voting.  If  there  is  a  custom  to  con- 
clude the  poll  at  a  certain  time,  that  being  a  reasonable  time, 
the  voters  must  tender  their  votes  within  it.  See  Burns,  vol. 
1.  p,  lo. 

Where  the  directors,  in  ordering  an  election,  limited  the 
time  of  keeping  the  polls  open  to  one  hour,  it  was  held,  that 
the  inspectors  could  still  extend  the  time  in  their  discretion 
to  accommodate  voters.  (Matter  of  the  Mohawk  R.  R.  Co., 
19  Wendell,  133.  See  Rex  v.  Mayor  of  Carmsethen,  Maule 
&  Selwyn,  697.) 

Class  from  which  to  he  Chosen.  In  almost  every  one  of 
these  charters  there  is  a  designation  of  the  class  from  which 
the  choice  is  to  be  made.  In  the  case  of  the  Hempstead 
charter  it  is  "  the  communicants  of  the  said  church."  In 
the  charter  of  St.  George's,  Flushing,  and  others,  it  is  "  of 
their  members,  etc."  The  persons  capable  of  holding  the 
office  must  be  of  such  specified  class,  and  none  others  are 
eligible. 

(11.)  Tenure.  I  believe  that  invariably  the  tenure  of 
office  is  for  the  ensuing  year,  or  until  others  be  chosen 
in  their  stead.  See  this  subject  examined,  post,  chapter  4, 
§18. 

Quorum  and  Majority.  Under  these  charters  the  common- 
law  rule  prevails.  All  being  convened,  by  notice,  or  from 
presumed  knowledge  of  the  appointed  day,  when  fixed  by 
charter  or  by-law,  they  who  attend  form  a  quorum,  and  a 
majority  of  that  quorum  decide  the  (questions.  But  in 
general  the  presence  of  one  warden  is  essential. 


Charters  to  ChurcJies  of  the  Church  of  England.     39 

(12.)  Vacancy.  Where  a  vacancy  occurs,  by  death,  etc., 
the  coramunicants  in  the  church  at  Hempstead,  and  those 
entitled  to  vote  in  other  cases,  are  to  supply  it.  Where  the 
charter  does  not  specify  the  mode  of  holding'  such  election, 
it  can  be  fixed  by  a  by-law  of  the  members,  and,  as  I  think, 
by  the  vestry. 

(13.)  The  patronage,  advowson,  presentation,  is  in  effect 
the  call  and  settlement  of  a  rector,  as  now  known  in  our 
law,  and  is  vested  in  all  the  charters  in  the  wardens  and 
vestrymen.  The  important  questions  of  the  effect  of  a  call 
with  or  without  institution,  as  to  property  or  income,  dura- 
tion of  the  connection,  and  other  points,  are  examined  post, 
chapter  4,  §  24,  and  chapter  20.  It  is  sufficient  to  say  here, 
that  so  far  as  the  general  legislation  of  the  Church  afl:ects 
these  questions,  the  ministers  of  chartered  churches  are  in 
the  same  position  as  those  attached  to  churches  organized 
under  the  General  Incorporation  Act. 

(14.)  The  assessment  of  <£60,  sanctioned  by  the  Act  of 
1693,  was  abolished  in  1784.     See  post,  chapter  3,  §  2. 

(15.)  The  power  of  appointing  subordinate  officers  is 
common  to  all  the  charters.     See  post,  chapter  16,  §  7. 

(16.)  The  authority  to  make  rules  and  ordinances  is 
also  found  in  all  these  charters.  See,  as  to  this  power,  post, 
chapter  16,  §  6. 


CHAPTER  III. 

THE   CONSTITUTION   OF   1777,    ETC.  —  STATUTES   OF   EQUAL- 
ITY. —  THE    GENERAL  ACT   OP   APRIL   6,  1784. 

§  1.  Constitution  of  1777.  The  35th  Article  of  the  Con- 
stitution of  1777,  after  recognizing  as  the  law  of  the  State 
such  parts  of  the  common  law  of  England,  and  of  the 
statute  law  of  England  and  Great  Britain,  and  of  the  acts 
of  the  legislature  of  the  Colony  of  New  York,  as  together 
formed  the  law  of  such  Colony,  on  the  19th  of  April,  1775, 
ordained,  "  That  all  such  parts  of  the  common  kw,  and 
all  such  of  the  said  statutes  and  acts  aforesaid  or  parts 
thereof  as  may  be  construed  to  establish  or  maintain  any 
particular  denomination  of  Christians  or  their  ministers, 
or  concern  the  allegiance  heretofore  yielded  to,  and  the 
supremacy,  sovereignty,  government,  or  exercise  by,  the 
King  of  Great  Britain,  and  his  predecessors  over  the  Col- 
ony of  New  York,  and  its  inhabitants,  or  are  repugnant  to 
this  Constitution,  be,  and  they  are  hereby,  abrogated  and 
repealed." 

So  in  the  30th  Article  it  was  ordained,  that  the  free  ex- 
ercise and  enjoyment  of  religious  profession  and  worship, 
without  discrimination  or  preference,  shall  forever  hereafter 
be  allowed  within  this  State  to  all  mankind. 

By  the  31st  Article,  it  was  declared,  "  Whereas  the  min- 
isters of  the  gospel  are  by  their  profession  dedicated  to  the 
service  of  God,  and  the  cure  of  souls,  and  ought  not  to  be 
diverted  from  the  great  duties  of  their  function :  There- 
fore, no  minister  of  the  gospel,  or  priest  of  any  denomi- 
nation whatsoever,  shall  be  eligible  to  or  capable  of  holding 
any  civil  or  military  office  within  this  State." 

The  36th  Article  had  this  clause :  that  "  Nothing  in  the 


Constikdion  of  1777.  —  Statutes,  etc.  41 

Constitution  contained  should  be  construed  to  affect  any 
grants  of  lands  within  the  State,  made  by  the  authority  of 
the  King  or  his  predecessors,  or  to  annul  any  charters  to 
bodies  politic,  by  him  or  them,  or  any  of  them,  made  prior 
to  the  14th  of  October  1775." 

§  2.  Act  of  ApHl  6,  1784.  On  the  6th  of  April,  1784 
(Laws,  chapter  18),  an  act  was  passed  to  enable  all  the  re- 
ligious denominations  in  the  State  to  appoint  trustees,  who 
should  be  a  body  corporate  for  the  purpose  of  taking  care 
of  the  temporalities  of  their  respective  congregations,  and 
for  other  purposes  therein  mentioned." 

The  preamble  is  as  follows:  "Whereas  by  the  38th 
article  of  the  Constitution  of  the  State  of  New  York,  it  is 
ordained  that  the  free  exercise  and  enjoyment  of  religious 
profession  and  worship  without  discrimination  or  preference 
should  forever  thereafter  be  allowed  within  the  State  to  all 
mankind.  And  whereas  many  of  the  churches,  congreg'a- 
tions,  and  religious  societies  in  this  State  (while  it  was  a 
colony)  have  been  put  to  great  difficulties  to  support  the 
public  worship  of  God,  by  reason  of  the  illiberal  and  partial 
distribution  of  charters  of  incorporation  to  religious  soci- 
eties, whereby  many  charitable  and  well-disposed  persons 
have  been  prevented  from  contributing  to  the  support  of 
religion  for  want  of  proper  persons  authorized  by  law  to 
take  charge  of  their  pious  donations,  and  many  estates  pur- 
chased and  given  to  the  support  of  religious  societies,  now 
rest  in  private  hands,  to  the  great  insecurity  of  the  societies 
for  whose  benefit  they  were  purchased  or  given.  And 
whereas  it  is  the  duty  of  all  free  and  virtuous  governments 
to  encourage  virtue  and  religion,  and  to  enable  every  re- 
ligious denomination  for  the  decent  and  honorable  support 
of  divine  worship  agreeable  to  the  dictates  of  conscience 
and  sound  judgment,  therefore,"  etc. 

This  act  formed  the  model  of  all  subsequent  legislation, 
and  has  been  superseded  by  such.  It  is  only  useful  to 
notice  a  few  of  its  provisions. 

The  distinction  between  the  qualifications  of  voters  at  the 
first  and  at  subsequent  elections  was  made.     For  the  first 


42      Ecclesiastical  Law  in  the  State  of  New   YorJc. 

election,  every  male  person,  who  had  statedly  worshiped 
with  the  congregation,  and  heen  considered  as  belonging  to 
it,  was  entitled  to  vote.  But  for  subsequent  elections,  he 
must  have  been  a  stated  attendant  on  divine  worship  in  said 
church  or  congregation  for  one  year  before  such  election, 
and  must  have  contributed  to  the  support  of  the  church 
according  to  the  usages  and  customs  thereof. 

A  register  of  such  attendants  was  directed  to  be  kept. 
By  the  9th  section,  "  Nothing  in  the  act  contained  was  to 
be  construed  to  alter  or  change  the  religious  constitutions 
or  governments  of  either  of  the  said  churches,  congrega- 
tions, or  societies,  so  far  as  respects  or  in  any  wise  concerns 
the  doctrine,  discipline,  or  worship  thereof." 

And  by  the  14th  section,  "  The  religious  corporations 
created  by  letters  patent  under  the  great  seal  of  the  Col- 
ony of  New  York,  were  recognized  in  allowing  them  to 
hold  lands  of  the  yearly  value  of  twelve  hundred  pounds, 
although  restricted  by  their  charter  to  a  less  sum." 

§  3.  Act  of  17th  AfHl  1784.  Most  of  the  sections  of 
the  Act  of  the  17th  of  April  1784  (chapter  23),  relate  to 
Trinity  Church  only.  But  by  the  6th  section,  to  remove 
all  doubts  as  to  the  continuance  and  effect  of  the  acts  spec- 
ified, it  was  expressly  enacted,  that  the  Act  of  the  27th 
September  1693,  that  of  the  27th  June  1704,  of  the  4th  of 
August  1705,  of  the  27th  July  1721,  of  the  21st  September 
1744,  certain  parts  of  an  Act  of  the  29th  November  1745, 
which  do  grant  certain  emoluments  and  privileges  to  the 
Episcopal  Church,  or  that  mode  of  religious  worship  com- 
monly called  the  Church  of  England,  in  the  city  and  county 
of  New  York,  and  in  the  counties  of  Richmond,  Queens, 
and  Westchester,  and  do  establish  and  maintain  the  min- 
isters of  that  denomination  within  the  said  counties,  and  do 
also  declare  or  imply  a  preeminence  or  distinction  of  the 
said  Episcopal  Church  or  Church  of  England  over  all  other 
churches  and  other  religious  denominations,  be  absolutely 
abrogated  and  repealed. 

§  4.  Act  of  20th  April  1784.     Again  by  an   Act  of  the 
20th  of  April  1784  (chapter  38),  it  was  recited  :  — 


ComtUutio7i  of  1777.  —  Stcdides,  etc,  43 

"  Whereas  by  virtue  of  sundry  acts  hereinafter  enumer- 
ated, passed  by  the  legislature  of  the  late  Colony  of  New 
York,  the  inhabitants  of  the  city  and  county  of  New  York, 
county  of  Richmond,  Westchester,  and  Queens  counties, 
without  distinction,  have  for  many  years  been  compelled  to 
pay  taxes  for  the  support  of  the  Episcopal  Church  in  the 
said  counties,  contrary  to  the  principles  of  justice  and  sound 
policy.  And  whereas  by  color  of  such  laws,  it  has  been 
pretended  that  the  Episcopal  churches  were  established  in 
such  counties,  and  claims  in  consequence  thereof,  to  have 
been  set  up,  and  prosecutions  commenced  injurious  to  the 
rights  and  privileges  of  other  religious  denominations.  And 
whereas,  although  the  spirit  of  the  said  laws  is  repugnant 
to  the  Constitution  of  this  State,  it  appears  incumbent  ou 
the  legislature,  in  order  to  remove  eveiy  ground  of  uneasi- 
ness, that  the  said  law  should  be  repealed,"  etc. 

Then  the  statute  proceeded  to  repeal  in  terms  the  Acts 
of  1693,  of  1705,  of  1721,  of  1745,  of  1755,  of  1756,  of 
the  20th  January  1770,  of  the  31st  January  1775,  and  the 
Act  against  Jesuits  and  Popish  priests  of  July  31,  1700. 

§  5.  Co7istitidion  of  1822.  The  fourteenth  section  of  the 
7th  Article  of  the  Constitution  of  1822  was  the  same  as  the 
36th  Article  of  that  of  1777,  cited  {ante,  §  1).  The  18th 
Ai-ticle  of  the  Constitution  of  1846  is  similar. 

"  Thus  it  is  manifest  that  all  the  royal  charters  incorpor- 
ating churches,  and  all  the  franchises  and  powers  they  con- 
fer are  recognized  and  in  full  validity  at  this  hour,  excepting 
such  provisions  in  them  as  may  declare  or  involve  the  exer- 
cise within  the  State  of  any  authority  by  a  foreign  prince  or 
potentate,  or  imply  any  supremacy  in  a  particular  church. 

"  Grants  of  land  to  them,  whether  by  private  individuals 
or  by  the  Crown,  for  the  purposes  of  their  creation,  and 
without  conditions  or  reservations,  are  beyond  recall  or 
control.  Incorporations  of  churches  in  communion  of  that 
of  England  in  the  colonies,  were  regarded  the  same  as  col- 
legiate and  academical  incorporations,  as  being  of  a  private 
and  independent  character,  the  same,  precisely,  as  to  their 
private  character,  as  would  be  the  incorporation  of  a  Pres- 
byterian or  Lutheran  congregation."     (Judge  Redfield.) 


CHAPTER  IV. 

THE   PROTESTANT   EPISCOPAL   CHURCH. 

§  1.  Ad  of  April  1784.  The  Act  of  April  6th,  1784,  be- 
fore referred  to,  was  general  in  its  provisions,  prescribing 
the  same  regulations  for  the  incorporation  of  churches  of 
every  denomination.  It  was  found  unsuitable  to  the  system 
of  the  Episcopal  Church,  and  on  the  17th  of  March,  1795 
(Laws,  chapter  25),  an  act  was  obtained,  entitled  "  An  Act 
for  the  Relief  of  the  Protestant  Episcopal  Church  in  the 
State  of  New  York." 

Act  of  1795.  The  preamble  is  as  follows  :  "  Whereas 
the  Protestant  Episcopal  Church  in  this  State,  by  the  peti- 
tion of  the  standing"  committee  of  its  convention,  hath  rep- 
resented that  the  act  entitled,  '  An  Act  to  enable,'  etc., 
passed  6th  of  April,  1784,  directs  a  mode  of  incorporation 
which  exposes  it  to  a  variety  of  difficulties,  leaving  the  cor- 
porations not  incorporated  by  charter  to  the  alternative  of 
foregoing  the  benefit  of  incorporation,  or  submitting'  to  an 
entire  alteration  and  subversion  of  the  usual  and  peculiar 
government  of  the  respective  congregations  of  said  Church. 
For  remedy  thereof,"  etc. 

The  provisions  enacted  were  so  nearly  the  same  as  those 
now  in  force  under  the  Act  of  1813,  that  I  shall  only  notice 
a  few  variations  of  some  significance,  and  illustrative  of  the 
present  law. 

The  clause  as  to  the  constitution  of  a  vestry  is  the  same, 
but  there  is  added  :  "  Which  vestry  shall  be,  to  all  intents 
and  purposes,  a  body  corporate,  and  enjoy  and  exercise  all 
the  power,  rights,  and  privileges  granted  to  trustees  by  the 
4th  and  6th  sections  of  the  act  entitled,  '  An  Act,  etc' " 
(the  Act  of  April  6th,  1784.) 


The  Protestant  Episcoind  Church.  45 

The  present  act  makes  the  trustees  and  their  successors 
the  body  corporate. 

Again,  section  4  declared  the  qualification  of  voters  thus : 
"  That  the  persons  qualified  to  vote  at  all  such  elections 
shall  be  such  male  adult  persons  as  shall  have  belonged  to 
such  church  or  congregation  for  the  last  twelve  months  at 
least,  preceding  such  election.  Provided  always,  that  they 
shall  have  been  baptized  in  the  Episcopal  Church,  or  shall 
have  been  received  into  the  said  church,  either  by  the  rite 
of  confirmation,  or  by  receiving  the  Holy  Communion,  or 
by  purchasing  or  hiring  a  pew  or  seat  in  such  church,  or 
by  some  other  joint  act  of  the  parties  and  of  the  rector, 
whereby  they  shall  have  attached  themselves  to  the  Prot- 
estant Episcopal  Church." 

The  first  section  of  the  General  Act  of  the  27th  of  March 
1801  (Laws,  chap.  79),  is  a  transcript  of  this  Act  of  1795, 
with  a  few  variations,  and  is  copied  verbatim,  in  the  first 
section  of  the  existing  Act  of  1813. 

§  2.  First  Election,  etc.  "  It  shall  be  lawful  for  the  male 
persons  of  full  age  belonging  to  any  church,  congregation,  or 
religious  society,  in  which  divine  service  shall  be  celebrated 
according  to  the  rites  of  the  Protestant  Episcopal  Church 
in  this  State,  and  not  already  incorporated,  to  meet  for  the 
purpose  of  incorporating  themselves,  and  of  electing  church- 
wardens and  vestrymen,  and  to  proceed  to  make  such 
election  and  to  effect  such  incorporation,  in  like  manner  as 
by  the  first  section  of  the  act  hereby  amended,  is  authorized 
to  be  done  by  persons  possessing  the  qualifications  therein 
specified." ^ 

Every  other  qualification  prescribed  in  the  Act  of  1813, 
amended  by  this  Act  of  1819,  is  dispensed  with  for  the  first 
election.  Twelve  months'  union  with  the  church  or  congre- 
gation was  required  by  the  Act  of  1813.  No  time  is  now 
prescribed.  But  as  notice  of  the  meeting  must  be  given 
for  two  preceding  Sundays,  the  belonging  to  the  church 
during  that  period  may  be  requisite. 

1  Act  of  March  5th,  1819,  §  1,  to  amend  the  act  entitled,  "An  Act  to  pro 
vide  for  the  Incorporation  of  Keligious  Societies."    Laws  of  1819,  chap.  33. 


46      Ecclesiastical  Law  in  the  State  of  Neiv  York. 

The  qualifications  are  merely  being-  a  male  of  full  age,  and 
belonging  to  a  congregation,  in  which  worship  is  celebrated 
according  to  the  rites  of  the  Church.  The  use  of  the 
services  according  to  the  Book  of  Common  Prayer  would 
satisfy  this  last  provision. 

What  is  the  meaning  of  the  phrase  "  belonging  to  any 
church?  "  etc.  The  phrase  is  not  "  belonging  to  the  Prot- 
estant Episcopal  Church,"  nor,  "  in  communion  with  the 
Protestant  Episcopal  Church ;  "  it  is,  "  belonging  to  a 
church  or  congregation,  in  which  divine  services  are  held, 
according  to  the  rites  of  such  Church." 

The  statute  itself  makes  a  discrimination.  It  renders 
valid  an  incorporation  by  persons  not  possessing  all  the 
qualifications  specified  in  the  Act  of  1813.  And  then  it 
declares,  that  no  person  not  possessing  those  qualifications 
(enumerated  in  the  Act  of  1813),  shall  be  permitted  to  vote 
at  any  subsequent  election.     (Sect.  1,  Act  of  1819.) 

It  seems  an  inevitable  consequence,  that  the  Statute  of 
1819  meant  to  dispense,  at  this  first  election,  not  merely 
with  the  prior  connection  of  twelve  months,  but  with  the 
other  qualifications  specified,  such  as  baptism,  confirmation, 
or  reception  of  the  Holy  Communion,  or  purchasing  or 
hiring  a  pew  or  seat,     A  usual  attendance  seems  enough. 

This  is  strengthened  by  reference  to  the  Act  of  1813  it- 
self. The  phrase,  "  who  shall  have  belonged  to  such  church 
or  congregation,"  is  used  distinctively  from  the  phrase 
of  "  being  in  communion  with  the  Protestant  Episcopal 
Church,"  and  the  other  enumerated  qualifications. 

In  the  discussions  upon  the  proposed  changes  in  the  Act 
of  Incorporation  in  the  Convention  of  New  York,  it  was 
stated,  that  the  change  in  1819  was  made  as  matter  of  pol- 
icy, to  spread  the  Church  in  new  regions.  If  the  persons 
had  evinced  a  disposition  and  preference  for  this  Church, 
even  for  a  short  period,  it  was  expedient  to  bring  them 
together  and  increase,  by  uniting,  their  attachment  and 
energy.  They  would  soon  be  led  to  a  more  decided  and 
consistent  faith. 

The  standing  committee  of  the  Western  Diocese  strongly 


The  Protestant  Episcopal  Church.  47 

urged  the  expediency  of  the  amendment  of  1819  contin- 
uing. Bishop  Delancy  was  willing  that  it  should  remain. 
The  latter,  after  an  experience  at  Albany,  most  earnestly 
and  publicly  deprecated  any  attempt  to  obtain  an  alteration 
in  the  law  as  it  stood.  Its  inconveniences  or  defects  had  far 
better  be  submitted  to,  than  to  encounter  the  risk  of  most 
radical  and  injurious  provisions  which  would  be  urged. 

Organizatioii.  There  may  have  been,  previous  to  these 
steps  for  an  incorporation,  a  complete  ecclesiastical  organ- 
ization, a  congregation  or  church,  rector,  wardens,  and 
vestrymen.  A  clause  of  the  first  section  of  the  Act  of  1813 
presupposes  this,  directing  that  the  rector,  if  any,  or  in  his 
absence,  or  if  there  be  none,  one  of  the  church-wardens  or 
vestrymen,  shall  be  called  to  the  chair. 

But  such  organization  is  not  made  necessary  by  the  stat- 
ute. Any  other  person  may  be  called  to  preside.  While 
the  ecclesiastical  organization  may  exist,  it  is  not  indis- 
pensable that  it  should  exist.  In  the  case  of  St.  Mark's 
Church,  it  did  exist  for  some  time  before  the  incorpora- 
tion. 

This  fact  and  distinction  will  be  found  of  importance 
in  many  cases  that  arise.  In  Hoffman's  "  Law  of  the 
Church,"  p.  276,  the  report  of  a  committee  of  the  Diocese 
of  Wisconsin  is  stated,  accurately  distinguishing  the  cases. 
"  The  organization  of  a  parish  is  strictly  and  solely  an  ec- 
clesiastical procedure,  constituting  the  parish  a  component 
part  of  the  Protestant  Episcopal  Church,  and  as  such  duly 
entitling  it  to  ecclesiastical  rights  and  privileges.  The 
ecclesiastical  organization  gives  no  civil  or  corporate  powers 
to  the  parish." 

While  the  ecclesiastical  organization  confers  no  corporate 
powers,  yet,  in  many  cases,  the  civil  incorporation  will  con- 
trol a  canonical  or  diocesan  regulation.  Thus  all  regula- 
tions of  the  mode  of  a  vestry's  acting,  its  succession,  rules 
as  to  property  of  the  Church,  will  be  exclusively  governed 
by  the  statutes  applicable  to  the  body  incorporated.  In  our 
State,  and  in  the  other  States,  as  far  as  I  am  aware,  the 
legislature  has  never   gone   beyond  its   proper  limit;  has 


48      Ecclesiastical  Laio  in  the  State  of  New   Yorh 

never  attempted  to  act  as  to  matters  of  doctrine,  discipline, 
or  religious  practice. 

There  is,  I  apprehend,  an  inaccuracy  in  the  precedent,  in 
the  Journal  of  the  Convention  of  New  York,  in  stating  that 
there  cannot  be  a  rector  until  there  is  a  corporation. 

§  3.  Object  of  the  fleeting.  The  object  of  the  meeting  is 
to  incorporate  themselves  under  the  Act  of  1813  as  amended 
in  1819.  They  are  by  a  majority  of  voices  "  to  elect  two 
church-wardens  and  eight  vestrymen,  and  to  determine  on 
what  day  of  the  week  called  Easter-week,  the  said  offices  of 
church-wardens  and  vestrymen  shall  annually  thereafter 
cease,  and  their  successors  in  office  be  chosen.  Also,  to  fix 
the  name  or  title  by  which  such  church  or  congregation 
shall  b^  known  in  law."  ^ 

§  4.  Notice.  Of  this  first  election,  "  notice  shall  be 
given  in  the  time  of  morning  service  on  two  Sundays  pre- 
vious thereto,  by  the  rector,  or  if  there  be  none,  by  any 
other  person  belonging  to  such  church  or  congregation."  ^ 
Here  again,  the  organization  of  a  church  with  a  rector 
is  supposed  as  possibly  existing. 

This  notice,  if  given  by  a  layman,  may  be  given  from  a 
pew  or  on  a  step  of  the  chancel.  The  election  would  be 
legal  if  given  by  such  anywhere,  but  Church  regulations 
forbid  that  it  should  be  given  from  within  the  chancel,  from 
the  desk,  or  pulpit.  The  writer,  at  least,  upon  examina- 
tion, gave  an  opinion  to  that  effect. 

It  is  to  be  given  "  in  the  time  of  morning  service."  It 
is  legal  to  give  it  at  any  period  during  such  service.  Cus- 
tom regulates  it  as  to  be  done  next  after  the  reading  of  the 
gospel.  It  must  not  be  given  during  evening  service.  It 
ought  not  to  be  given  by  a  clergyman  officiating  who  is  not 
the  rector.  Most  probably  an  incorporation,  otherwise 
unobjectionable,  would  not  be  held  invalid  on  this  ac- 
count, but  it  is  easy  and  secure  to  follow  the  letter  of  the 
statute. 

§  5.  Presiding  Officer.  At  this  meeting  for  this  incorpo- 
ration and  first  election,  "  the  rector,  or  if  there  be  none, 

1   Sect.  1  of  Laws  of  1813.  ^  md. 


The  Protestant  Einscopal  Church.  49 

or  he  be  necessarily  absent,  then  one  of  the  church-wardens 
or  vestrymen,  or  any  other  person  called  to  the  chair,  shall 
preside  at  such  first  election."  ^ 

If  there  is  a  rector,  and  he  be  present,  he  must  preside. 
If  absent,  (the  necessity  will  be  presumed,)  and  there  are 
wardens  and  vestrymen,  then  a  warden  or  a  vestryman 
must  preside ;  if  both  wardens  are  absent,  then  one  of  the 
vestrymen.  All  this  presumes  an  ecclesiastical  organiza- 
tion. But  if  there  is  no  such  organization,  then  any  other 
person  called  to  the  chair  shall  preside. 

In  stating  that  if  there  is  a  warden  present  he  presides 
in  preference  to  a  vestryman,  I  state  the  custom  rather 
than  the  strict  law.  The  statute  has  not  pointed  out  any 
order  of  presiding,  except  as  to  the  rector.  If  insisted 
upon,  I  apprehend  that  the  persons  assembled  may  choose 
a  presiding  officer,  though  of  course,  only  out  of  wardens 
or  vestrymen.  If  not  one  of  either  class  is  present,  then 
another  person  may  be  chosen. 

It  is  quite  a  common  case,  when  there  is  no  rector,  for 
the  clergyman  who  has  officiated  during  the  service  to  pre- 
side at  the  election.  The  committee  of  the  Convention  on 
the  Incorporation  of  Churches  in  1864,  recognize  this  in 
the  case  of  the  Kev.  Mr.  Dyer,  he  being  stated  as  assisting 
in  the  organization  and  presiding,  although  they  held  the 
certificate  defective  in  not  adding  that  he  had  been  called 
to  the  chair.  Still  the  tenor  of  the  provisions  rather  indi- 
cates that  the  person  so  called  and  presiding  should  be  one 
of  the  congregation,  —  one  belonging  to  it. 

The  number  to  be  chosen  are  eight  vestrymen  and  two 
wardens,  neither  more  nor  less.  The  election  may  be  by 
ballot,  or  by  open  nomination,  and  viva  voce  voting.  This 
point  the  meeting  will  first  decide.  Two  persons  of  those 
present  should  be  called  by  the  chair  to  assist  in  counting 
the  ballots,  or  to  join  in  declaring  the  result  upon  an 
election  by  nomination.  They  are  to  join  in  the  certificate. 
It  is  advisable  to  appoint  a  secretaiy,  and  that  minutes  be 
kept,  to  be  copied  into  a  regular  book,  and  attested  by  the 

1  Sect.  1  of  Laws  of  1813. 


50      Ecclesiastical  Latv  in  the  State  of  Neiv   York. 

presiding  officer  and  secretary.  The  notice  and  days  of 
giving  it  should  he  stated  with  the  course  of  proceedings, 
and  names  of  the  persons  chosen.  It  is  expedient  to  enter 
all  this  in  the  book  intended  as  the  Vestry  Minute  Book. 

§  6.  Certificate.  "  The  person  who  presides,  together 
with  two  other  persons,  shall  make  a  certificate,  under  their 
hands  and  seals,  of  the  church- wardens  and  vestrymen  so 
selected ;  of  the  day  in  Easter-week  so  fixed  on  for  the  an- 
nual election  of  their  successors ;  and  of  the  name  or  title 
by  which  such  church  or  congregation  shall  be  known  in 
law."  1 

For  the  form  of  this  certificate,  see  Appendix  No.  2. 

All  which  the  statute  requires  to  be  stated  in  the  certifi- 
cate is  the  names  of  the  wardens  and  vestrymen,  the  day 
in  Easter-week  fixed  for  the  annual  elections,  and  the  name 
by  which  the  church  shall  be  known  in  law. 

In  the  case  of  All  Saints  Church  v.  Lovett  (1  Hall's  Su- 
perior Ct.  Reps.  195),  it  appeared  as  a  fact,  that  there  was 
a  rector,  and  that  another  person  presided  at  the  election. 
The  Court  held,  that  as  the  statute  did  not  require  that  the 
certificate  should  state  that  the  rector  presided,  or  some  one 
else  in  the  cases  prescribed,  it  would  assume  that  the  rector 
was  absent  to  sustain  the  incorporation. 

The  Methodist  Union  Church  v.  Richet  (23  Barbour's 
Reps.  437),  arose  under  the  third  section  of  the  Act  of 
1813,  applicable  to  other  churches  or  congregations ;  but 
the  provisions  as  to  notice,  the  holding  the  elections,  and 
the  certificate,  are  so  similar  as  to  make  the  decision  per- 
tinent. 

The  Court  say,  that  although  it  is  manifestly  proper  to 
show  in  the  certificate  that  all  the  requirements  of  the 
statute  have  been  followed,  the  omission  of  particulars  not 
necessary  to  be  stated,  does  not  aftect  the  validity  of  the 
certificate.  A  compliance  with  the  statute,  beyond  what  is 
required  to  be  set  forth,  may  be  presumed. 

In  the  case  of  the  Church  of  the  Redemption  in  1864, 
the  certificate  stated  that  the  Rev.  Robert  I.  Dickson  pre- 

1  Sect.  1  of  Laws  of  1813. 


The  Protestant  Ephco'pal  Church.  51 

sided,  but  did  not  state  that  he  was  the  rector,  or  had  been 
called,  etc.     In  point  of  fact  he  was  the  rector. 

The  Committee  of  the  Convention  on  the  Incorporation 
of  Churclies,  reported  ag-ainst  admission  upon  this  and 
another  ground,  namely,  the  want  of  a  stamp  under  the 
United  States  Laws.  This  last  point  is  afterwards  more 
fully  noticed.  The  author's  opinion  being  asked,  he  stated, 
that  under  the  above  authority  the  omission  was  not  fatal, 
although  the  irregularity  should  be  discouraged.  It  could 
not  be  doubted  that  the  fact  would  be  presumed,  or  would 
be  open  to  proof. 

But  if  we  look  narrowly  into  this  point,  we  may  probably 
conclude  that  it  is  best  that  the  certificate  should  be  rigidly 
confined  to  what  the  law  exacts,  and  go  no  further.  It  is 
merely  the  record  of  what  took  place  at  the  meeting. 
Sometimes  the  certifiers  might  not  be  able  conscientiously 
to  state  the  previous  action.  Simplicity  is  attained.  The 
certificate  is  clearly  presumptive  evidence  of  the  incorpora- 
tion. All  the  prerequisites  are  open  to  proof,  whether 
stated  or  not. 

§  7.  Sifjiiing,  etc.  The  certificate  is  to  be  signed  and 
sealed  by  the  presiding  officer  and  by  two  other  of  the 
persons  present."  ^ 

Care  should  be  taken  that  these  persons  have  been  at  the 
meeting  for  the  whole  time  it  lasted. 

§  8.  Acknowledgment  or  Proof.  1.  "  Such  certificate  shall 
be  duly  acknowledg'ed  or  proved  by  one  or  more  of  the  sub- 
scribing witnesses,  before  the  Chancellor,  or  one  of  the 
Judges  of  the  Supreme  Court,  or  one  of  the  Judges  of  the 
Court  of  Common  Pleas  of  the  county  where  such  church 
or  place  of  worship  of  such  congregation  shall  be  situated." 
(Sect.  1  of  Act  of  April  5,  1813.) 

2.  "  Certificates  of  incorporation  authorized  by  the  '  Act 
to  provide  for  the  Incorporation  of  Religious  Societies,'  passed 
April  5,  1813,  which  shall  be  hereafter  made  or  executed, 
may  be  acknowledged  or  proved  before  any  officer  author- 
ized to  take  acknowledgments  or  proofs  of  conveyances  of 
1  Sect.  1  of  Laws  of  1813. 


52      Ecclesiastical  Laiu  in  the  State  of  Neto   YoyJc. 

real  estate,  and  in  the  same  manner,  and  of  the  like  eflfect ; 
and  upon  being  so  acknowledged  or  proved,  shall  be  entitled 
to  be  recorded  as  in  the  said  act  provided."  (Sect.  1  of  Act 
of  April  16,  1844,  chap.  158.) 

Judges  of  the  Supreme  Court,  Judges  of  the  County 
Courts,  (at  least  out  of  the  county  of  New  York,)  Commis- 
sioners of  Deeds  and  Notaries  Public,  in  their  particular 
counties,  are  authorized  to  take  the  acknowledgment  of 
deeds. 

3.  "All  such  certificates  which  have  been  heretofore  ac- 
knowledged or  proven,  before  any  officer  authorized  to  take 
acknowledgments  or  proofs  of  conveyances  of  real  estate, 
shall  and  are  hereby  declared  to  be  of  the  same  force  and 
validity  as  if  the  same  had  been  acknowledged  or  proven 
before  any  one  of  the  officers  named  in  the  first  section  of 
the  act  hereby  amended ;  but  nothing"  herein  contained 
shall  l)e  construed  to  impair  or  affect  the  rights  of  any  per- 
son or  persons,  in  any  case  where  any  legal  proceedings 
shall  be  instituted  for  enforcing  such  rights  before  the 
passage  of  this  act."  (Sect.  2  of  Act  of  April  16,  1844, 
chap.  158.) 

In  The  First  Baptist  Society  v.  Rapelye  (16  Wendell, 
605,  1837),  the  acknowledgment  of  the  certificate  was  be- 
fore a  Commissioner  of  Deeds,  and  it  was  held,  that  there 
was  no  valid  incorporation  on  that  account.  Then  the  law 
of  1844  above  cited  was  passed. 

A  certificate  may  be  executed,  and  will  be  received  in 
evidence,  in  a  suit  testing  the  validity  of  an  election,  al- 
though not  executed  until  several  months  after  the  election. 
(The  People  v.  Peck,  11  Wendell,  604.) 

In  the  case  of  the  Church  of  the  Redemiition,  a  meeting 
was  held  for  the  purpose  of  incorporating  on  the  12th  of 
April,  1864.  A  certificate  was  executed,  duly  proven  and 
recorded  in  the  Register's  office  of  the  city  of  New  York, 
on  the  22d  of  April,  1864.  The  certificate  was  defective, 
and  the  record  unavailing  from  the  want  of  a  stamp,  under 
the  law  of  the  United  States.  (See  post.)  An  election 
took  place  in  April,  1865,  on  the  day  fixed  upon,  and  some 


The  Protestant  Episcopal  Church.  53 

changes  were  made.  An  application  for  admission  to  the 
Convention  in  September,  1865,  was  reported  against,  ])e- 
cause  of  this  want  of  a  stamp,  and  that  there  was  no  incor- 
poration. On  Saturday,  the  31st  of  March,  1866,  a  new 
certificate  was  executed  hy  the  same  three  persons  who 
signed  the  former  one,  was  duly  acknowledged  and  stamped, 
and  was  recorded  on  Monday,  the  2d  day  of  April,  1866,  in 
the  Kegister's  office.  On  Sunday,  the  1st  of  April,  1866, 
notice  was  given  that  the  annual  election  would  he  held  on 
the  Tuesday  ensuing.  Such  election  was  held  and  certain 
changes  in  the  vestrymen  made. 

The  new  certificate  was  a  precise  transcript  of  the  former 
of  the  same  date,  excepting  it  stated  the  presiding  officer 
to  be  the  rector.     The  subscribing  witnesses  were  different. 

The  author  submitted  the  following  results  in  an  opinion. 
(The  effect  of  the  want  of  a  stamp  was  first  discussed.     See 

That  assuming  the  first  record  to  be  totally  void,  and  no 
corporation  constituted,  the  renewed  certificate  was  a  valid 
instrument  properly  executed,  and  the  corporation  was  cre- 
ated when  it  was  recorded.  That  the  old  certificate  could 
have  been  used,  and  stamped  and  recorded  anew,  with  the 
same  effect.  There  was  however  no  objection  to  the  issuing 
of  the  new  one.  The  statute  had  nowhere  prescribed  a 
time  for  such  an  instrument  to  be  acknowledged,  or  even 
for  its  execution.  A  defective  certificate  could  be  supplied 
subsequently  by  a  new  one.  That  had  the  new  and  regular 
certificate  been  filed  in  the  proper  office  within  a  year  from 
the  organization,  every  thing  would  have  been  valid ;  and 
that  the  better  opinion  appeared  to  be  that  if  nothing  had 
been  done  requiring  corporate  powers,  nor  any  thing  ac- 
quired as  a  corporation,  the  old  vestry  held  their  places,  and 
the  proceedings  would  be  valid.  The  provisions  of  the 
statute  formed  rules  by  which  the  members  had  agreed  to 
be  controlled.  That  as  the  statute  did  not  require  any 
notice  to  be  given  of  a  subsequent  election,  nor  any  rule 
existed  requiring  notice,  that  given  in  the  case  on  the  pre- 
ceding Sunday  was  sufficient. 


54     Ecclesiastical  Law  in  the  State  of  New   YorJc. 

4.  Stamp.  As  before  observed,  the  application  of  the 
Church  of  the  Keclemption  for  admission  into  Convention, 
was  reported  against  on  the  ground  of  the  want  of  a  stamp 
upon  the  certificate.  The  Committee  quote  the  152d  section 
of  the  Act  of  Congress  of  June  30,  1864,  providing  that 
it  shoukl  not  be  lawful  to  record  any  instrument  required 
by  law  to  be  stamped,  unless  a  stamp  of  the  proper  amount 
be  affixed.  And  the  record  of  any  such  instrument  upon 
which  the  stamp  or  stamps  shall  not  have  been  affixed,  shall 
be  utterly  void,  and  shall  not  be  used  in  evidence. 

The  author,  in  the  opinion  before  referred  to,  observed, 
that  as  the  certificate  was  executed  April  12th,  and  recorded 
April  22d,  1864,  an  act  of  the  ensuing  June  could  scarcely 
invalidate  an  instrument  then  on  record,  if  it  was  before 
valid.  The  question  would  seem  therefore  to  be  governed 
by  the  law  in  force  at  the  previous  dates. 

By  the  Act  of  July  1st,  1862,  stamp  duties  are  imposed 
on  the  instruments  enumerated  in  Schedule  B  annexed  to 
it.  Among  such  instruments  was  "  a  certificate  of  any 
other  description  than  those  specified."  A  duty  of  ten 
cents  was  imposed,  afterwards  reduced  to  five. 

The  Commissioner  of  the  Revenue  held,  that  "  a  stamp 
was  requisite  upon  every  certificate  which  has  or  may  have 
a  legal  force  in  law  or  equity."  Section  95  imposed  a  pen- 
alty for  signing  or  issuing  any  instrument  without  the 
proper  stamp ;  and  declared,  "  that  such  instrument  as 
aforesaid  should  be  invalid  and  of  no  eff*ect." 

Various  provisions  were  quoted,  relaxing  the  law  under 
particular  circumstances. 

The  163d  section  of  the  Act  of  June  30th,  1866,  was  cited, 
and  is  as  follows  :  "  No  deed  or  instrument  so  required  by 
law  to  be  stamped,  and  heretofore  signed  or  issued  without 
being  duly  stamped,  nor  any  copy  thereof,  shall  be  recorded, 
or  be  admitted  to  be  used  as  evidence  in  any  court,  until  a 
legal  stamp  shall  be  affixed  ;  and  a  party  interested  is  au- 
thorized to  affix  such  stamp  in  the  presence  of  the  Register, 
Recorder,  etc.  Provided,  that  no  instrument,  etc.,  issued 
prior  to  this   act  without   being   stamped,  shall  for   that 


The  Protestant  Episcopal  Church.  55 

cause,  if  the  stamps  required  be  affixed,  be  deemed  invalid 
and  of  no  effect." 

The  certificate  in  the  case  was  invalid  and  of  no  effect, 
not  under  the  152d  section  of  the  law  of  June,  1864,  but 
under  the  original  Act  of  1862  (§  94-95),  as  amended  to 
five  cents.  But  under  the  clauses  cited,  the  old  certificate 
(at  least  prior  to  July  13th,  1866,)  could  have  been  stamped, 
and  have  been  then  duly  recorded  anew,  or  the  old  ren- 
dered legal.  From  that  time  certainly,  the  corporation 
would  be  constituted. 

And  it  might  be  that  such  stamping  would  render  every 
thing  operative  and  valid  from  the  beginning,  so  that  if 
stamps  were  now  affixed,  the  corporation  would  be  deemed 
in  existence  from  April  22,  1864,  and  every  corporate  act 
established.  (Brown  v.  Savage,  5  Jurist,  1070 ;  Rogers  v. 
James,  7  Taunton,  747.) 

The  Act  of  the  13th  of  July,  1866,  §  9,  was,  however, 
the  act  in  force,  and  was  the  same  as  section  152  of  the 
Act  of  June  30th,  1864.  There  might  perhaps  be  a  ques- 
tion whether  the  clauses  referred  to  are  not  repealed.  But 
without  considering  this  point,  as  the  new  certificate  was 
duly  stamped  and  recorded  in  April,  1866,  before  this  act, 
the  strong  ground  was,  that  the  corporation  commenced 
April  2d,  1866.  It  was  stated  that  there  was  nothing,  con- 
nected with  property  or  otherwise,  which  would  make  the 
fact  that  there  was  no  legal  incorporation  from  1864  until 
this  period,  of  importance. 

As  above  noticed,  the  law  of  1866,  now  in  force,  forbids 
the  recording  of  any  instrument  on  which  stamps  are 
required,  without  such  stamps  are  affixed ;  otherwise,  the 
record  is  wholly  void,  and  cannot  be  given  in  evidence, 

§  9.  Record  of  Certificate.  (1.)  The  certificate  thus  exe- 
cuted, and  acknowledged  or  proven,  shall  be  recorded  by 
the  Clerk  of  such  county  (the  county  where  the  church  or 
place  of  worship  of  such  congregation  shall  be  situated),  in 
a  book,  to  be  by  him  provided  for  that  purpose.  (§  1  of  Act 
of  April  5th,  1813.) 

(2.)     "  All  that  part  of  the  former  duty  of  the  Clerk  of 


56     Ecclesiastical  Law  in  the  State  of  New   York. 

the  city  and  county  of  New  York,  which  appertains  and  re- 
lates to  the  registering  of  mortgages,  and  to  the  recording 
of  deeds,  conveyances,  and  other  writings,  which  hy  law  are 
directed,  or  hereafter  may  be  directed,  to  be  registered  or 
recorded,  shall  continue  to  he  held,  exercised  and  enjoyed, 
by  a  person  to  be  appointed  as  is  hereafter  mentioned,  and 
be  called  the  Register  in  and  for  the  city  and  county  of 
New  York  ;  and  he  shall  have  and  enjoy  all  the  rights  and 
powers,  and  perform  all  the  duties  which  were  formerly  per- 
formed by  the  Clerk  of  the  city  and  county  of  New  York, 
in  relation  to  the  recording  and  registering  of  deeds,  con- 
veyances, mortgages,  and  other  writings."  (§  99  of  Act  of 
April  9,  1813,  as  amended  by  subsequent  acts.) 

(3.)  The  Clerk  of  the  city  and  county  of  New  York  shall 
forever  hereafter  be  relieved,  restrained,  and  precluded  from 
doing  or  performing  any  duties  or  services,  or  any  act,  mat- 
ter, or  thing  whatsoever,  as  Clerk  of  the  city  and  county 
of  New  York,  so  far  as  the  same  relates  to  the  registering 
of  mortgages,  and  recording  of  deeds,  conveyances,  and 
other  writings,  which  by  law  are,  or  hereafter  may  be, 
directed  and  required  to  be  recorded  or  registered.  (Ibid. 
§  160.) 

These  provisions  are  found  in  the  act  to  reduce  the  laws 
relating  to  the  city  of  New  York  into  one  act.  (2  R.  L., 
1813,  p.  412.) 

The  first  act  was  that  of  March  13,  1812.  (6  Webster, 
163.) 

(4.)  "  Whereas  several  religious  societies  whose  places 
of  worship  are  in  the  city  of  New  York,  seeking  to  incorpor- 
ate themselves  under  the  provisions  of  an  act  entitled,  '  An 
Act  to  provide  for  the  Incorporation  of  Religious  Societies,' 
passed  April  5th,  1813,  have,  through  mistake,  caused  the 
certificate  provided  for  by  the  first  section  of  this  act  to  be 
recorded  in  the  office  of  the  Clerk  of  the  city  and  county  of 
New  York  :  Now,  therefore,  be  it  enacted,  that  the  recording 
of  every  such  certificate  in  the  said  office  of  the  Clerk  of  the 
city  and  county  of  New  York,  prior  to  the  passage  of  this 
act,  be  regarded  and  construed,  and  such  recording  is  here- 


The  Protestant  Episcopal  Church.  57 

by  declared  to  be,  of  the  same  validity,  force,  and  eflFect,  as 
would  have  been  the  recording  of  such  certificate  in  the 
office  of  the  Register  of  the  city  and  county  of  New  York ; 
and  every  act,  deed,  matter,  and  thing,  done  or  performed 
by  every  such  religious  society  since  the  recording*  of  its  cer- 
tificate in  the  office  of  said  Clerk,  is  hereby  ratified  and  con- 
firmed, and  declared  to  be  valid  in  all  respects,  as  if  said 
certificate  had  been  recorded  in  the  office  of  said  Register  ; 
but  this  act  shall  not  affect  any  suit  or  proceeding  already 
commenced  arising  out  of  such  original  mistake."  (§  1  of 
Act  of  April  29,  1863,  chap.  287.) 

In  the  case  of  the  Church  of  the  Atonement,  before  men- 
tioned, the  certificate  of  an  election  in  November  1865,  had 
been  filed  in  the  County  Clerk's  office.  An  opinion  was 
given  that  this  was  not  the  proper  office,  but  the  Register's 
only. 

Among  other  points  the  Revised  Statutes  were  referred  to 
(1  R.  S.  762,  §  38),  defining  a  conveyance  "  an  instrument 
by  which  the  title  to  any  real  property  may  be  affected  in 
law  or  equity."  And  also  the  provisions  by  which  for  re- 
cording conveyances,  the  Register  of  the  city  of  New  York, 
was,  by  section  43,  made  in  effect  the  County  Clerk.  A 
doubt  was  expressed  whether  a  certificate  by  which  no  title 
was  directly  affected,  but  through  the  recording  of  wliich  a 
body  might  acquire  title,  and  in  a  particular  mode  transfer 
it,  was  within  the  clause.  However,  the  Act  of  April  29, 
1863  [ante],  was  a  clear  legislative  declaration,  that  the 
Register's  office  was  the  proper  place,  and  not  the  Clerk's 
office. 

The  filing  in  the  wrong  office  was  equivalent  to  an  omis- 
sion to  file  and  record  at  all.  And  hence  no  corporation  had 
been  constituted.  The  language  w  as,  "  that  the  trustees  and 
their  successors  shall  thereupon  be  a  corporate  body,"  etc. 
The  recording  was  a  prerequisite  as  absolutely  necessary  to 
be  followed  as  any  other  prescription  of  the  statute. 

§  10.  Certificate  Evidence.  By  the  Act  of  1813  (chap. 
271,  §  9),  this  certificate,  duly  proved  or  acknowledged,  with 
the  certificate  of  the  proper  officer  endorsed  thereon,  may 
be  received  in  evidence,  on  the  trial  of  any  action,  in  the 


58     Ecclesiastical  Law  in  the  State  of  New  York. 

same  maimer  as  if  such  instrument  were  a  conveyance  of 
reai  estate. 

And  by  the  Revised  Statutes  (1  R.  S.  377,  §  76),  copies  of 
all  papers  duly  filed  in  the  office  of  the  County  Clerk,  and 
transcripts  from  the  book  of  records  kept  therein,  certified 
by  such  Clerk,  with  the  seal  of  his  office  affixed,  shall  be 
evidence  in  all  courts,  in  like  manner  as  if  the  originals  were 
produced.  The  transcript  of  all  records  certified  by  the 
said  Register  may  be  read  in  evidence  in  any  court  of  this 
State,  without  further  proof  of  such  deed,  conveyance,  or 
other  writing,  so  recorded,  in  the  said  office.  (§  161  of  Act 
of  April  9,  1813,  "  To  reduce,"  etc.). 

§  11.  Vestry  are  Trustees.  "  The  church-wardens  and  ves- 
trymen so  created,  and  their  successors  in  office,  of  them- 
selves ;  but  if  there  be  a  rector,  they,  together  with  the 
rector,  shall  form  a  vestry  and  be  the  trustees  of  such 
church  or  congregation."     (§  1,  Act  of  1813.) 

In  the  first  place,  the  wardens  and  vestrymen,  if  there  is 
no  rector,  constitute  a  vestry ;  but  if  there  is  a  rector,  then 
they,  together  with  him,  form  it ;  and  it  cannot  be  formed 
without  him.  In  the  same  manner,  they,  or  they  with  the 
rector,  are  constituted  trustees. 

The  Church  phraseology  is  thus  preserved.  A  vestry  is 
constituted  resembling  the  select  vestries  of  the  English 
law,  and  representing  the  mass  of  the  parishioners.  The 
assembling  of  these  with  the  rector,  forms  a  vestry  gener- 
ally, as  known  to  that  law. 

So  by  the  second  section  of  the  Vestry  Act  of  Maryland, 
the  rector  of  the  parish,  with  all  the  eight  vestrymen  chosen 
at  the  election,  shall  be  deemed  and  considered  the  vestry 
of  the  parish  for  the  ensuing  year,  and  the  rector  of  the 
parish  shall  always  be  one  of  the  vestry. 

The  Act  of  1785  of  Virginia,  and  the  ordinance  of  the 
Convention  after  the  repeal  of  that  act,  contain  similar  pro- 
visions.    The  statute  of  Wisconsin  is  to  the  same  efiect. 

§  12.  Corporate  Body.  Such  trustees  and  their  succes- 
sors shall  thereupon,  by  virtue  of  this  act,  be  a  body  cor- 
porate, by  the  name  or  title  expressed  in  such  certificate. 
(Ibid.) 


The  Protestant  Episcopal  Church.  59 

This  language  is  precisely  the  same  as  that  used  in  the 
third  section  of  the  act,  under  which  it  has  been  held,  that 
trustees  do  not  form  the  corporation,  so  as  to  enable  them 
to  sue  in  their  own  names.     (See  i)ost,  chap.  16,  §  3.) 

§  13.  Subsequent  Elections.  "The  persons  qualified  as 
aforesaid,  shall  in  every  year  thereafter  (after  the  first  elec- 
tion), on  the  day  in  Easter- week,  so  to  be  fixed  for  that  pur- 
pose, elect  such  church-wardens  and  vestrymen."  (§  1  of 
Act  of  1813.) 

"  No  person  not  jiossessing  those  qualifications,  shall  be  per- 
mitted to  vote  at  any  subsequent  election  of  church-wardens 
and  vestrymen."     (§  1  of  Act  of  March  5,  1819,  chap.  38.) 

The  qualifications  thus  prescribed  are  those  stated  in  the 
first  section  of  the  Act  of  1813,  and  which,  until  the  Act 
of  1819,  were  all  required  for  the  first,  as  well  as  subsequent 
elections.     They  are,  — 

(1.)  Being  a  male  person  of  full  age. 

(2.)  Being  of  a  church  or  congregation  in  communion 
with  the  Protestant  Episcopal  Church  in  this  State. 

(3.)  Having  belonged  to  such  church  or  congregation  for 
the  last  twelve  months  preceding  such  election. 

We  pause  here  to  notice  that  these  qualifications  are  sep- 
arate, and  each  essential.  The  qualifications  subsequently 
stated  are  adjuncts  to  these,  though  distinctive  in  them- 
selves. Great  errors  are  fallen  into  by  not  understanding 
or  neglecting  this  point. 

The  essential  and  indispensable  prerequisites  of  a  voter 
are,  —  1.  That  he  is  a  male  adult.  2.  That  he  shall  be  of  a 
church  which  is  in  communion  with  the  Protestant  Episco- 
pal Church  in  this  State.  3.  That  he  has  belonged  to  the 
particular  church  where  he  proposes  to  vote,  for  twelve 
months  preceding  the  election. 

Then  follow  other  qualifications,  each  of  which  is  ad- 
junctive to,  or  explanatory  of,  the  preceding  qualifications. 

(4.)  And  who  shall  have  been  baptized  in  the  Episcopal 
Church. 

Or,  shall  have  been  received  therein  either  by  the  rite  of 
confirmation,  or  by  receiving  the  Holy  Communion  ;  or,  by 
purchasing  or  hiring  a  pew  or  seat  in  said  church ;  or,  by 


60     Eeclesiastical  Lmv  in  the  State  of  New   York. 

some  joint  act  of  the  parties  and  of  the  rector,  whereby 
they  shall  have  attached  themselves  to  the  Protestant  Epis- 
copal Church. 

Apparently  there  is  a  class  of  what  may  be  termed  eccle- 
siastical, and  another  of  secular  qualifications. 

It  has  been  claimed  that  one  who  hires  a  pew  or  seat, 
although  an  avowed  Dissenter  or  Romanist,  and  who  had 
frequented  the  church  sufficiently  during  the  year,  might 
vote. 

But  this  view  is  clearly  erroneous.  The  church  or  con- 
gregation to  which  he  shall  have  belonged  for  a  year,  is  to 
be  one  in  communion  with  the  Protestant  Episcopal  Church. 
He  is  to  be  of  that  Church.  Hence  he  is  to  be  of  such  com- 
munion. Reception  into  the  Convention  is  a  plain  proof  of 
this  communion  of  the  Church.  But  it  is  not  the  only  test. 
Avowal  of  the  doctrine  and  discipline,  worshiping  accord- 
ins:  to  its  formularies,  is  also  such.  The  individual  member 
must  have  the  same  belief  and  give  the  same  indications 
and  proofs  of  it  as  the  body. 

Again,  being  haptized  in  the  EjnscopaJ  Church  (meaning, 
according  to  its  prescribed  forms  and  order,  excluding  in 
this  instance,  I  apprehend,  lay  baptism,)  is  a  definite  proof 
of  this  comsnuuion. 

Then  the  other  qualifications  specified  contemplate  a  re- 
ception into  tJie  Church  of  persons  not  in  it  by  virtue  of 
baptism.  They  are  designated  as  having  been  received  by 
confirmation  or  through  the  holy  communion.  These  evi- 
dences are  not  local  but  general.  The  next  is  local :  or,  by 
purchasing  or  hiring  a  pew  or  seat  in  said  church.  But 
the  true  version  of  this  is,  the  hiring  or  purchasing  a  seat 
in  the  particular  church  by  one  in  communion  with  the 
Church,  —  the  general  spiritual  body,  — but  in  a  very  loose 
sense. 

Thus  a  person  may  have  been  baptized  with  lay  baptism, 
or  never  baptized,  nor  confirmed,  nor  taken  the  communion, 
yet  if  he  professes  to  unite  himself  with  the  Episcopal 
Church,  and  evinces  it  by  worshiping  in  a  church  of  that 
faith  for  a  year  previous,  then  the  holding  or  hiring  a  pew 


The  Protestant  Episcopal  Church.  61 

or  seat  in  it,   is   a   reception  into  it,  for  the  purpose  of 
voting'. 

Many  years  ago  this  subject  was  submitted  to  the  late 
Chief  Justice  Jones,  and  the  author.  The  opinion  was  very 
clear,  that  thus  far  the  provisions  were  plain  and  consistent. 
No  one  could  vote  who  was  not  of  the  communion ;  in 
other  words,  a  professed  Episcopalian,  and  had  belonged  to 
the  particular  church  for  a  year  previous ;  and  the  meaning 
of  this  phrase  was,  the  statedly  worshiping  at  the  church, 
or  whenever  he  attended  public  worship,  with  the  exception 
of  necessary  absences;  or  at  least,  that  there  was  not  a 
greater  or  equal  degree  of  attendance  on  public  worship 
elsewhere,  during  the  year. 

But  the  remaining  clause  has  always  been  a  subject  of 
difficulty.  A  person  may  be  qualified  to  vote  "  by  a  joint  act 
of  himself  and  the  rector,  whereby  he  attaches  himself  to 
the  Protestant  Episcopal  Church." 

This  again  is  subordinate  to  the  yearly  attendance. 
It  would  of  course  shock  every  one  to  state  the  proposition, 
that  a  rector  could  make  a  person  a  member  of  the  Church, 
the  body  of  Christ,  in  any  way  but  through  the  ordinances 
of  the  Church.  That  is  not  the  sense  which  can  be  admitted. 
I  have  known  of  a  case  in  which  a  rector  received  a 
money  contribution  for  his  own  support,  or  for  the  general 
use  of  the  church,  a  few  weeks  before  the  election,  and  ad- 
mitted the  party  to  vote.  Besides  the  decisive  objection 
of  the  want  of  attendance  for  the  year  previous,  this  was  a 
flagrant  misconstruction  of  the  provision.  That  payment 
was  not  attaching  himself  to  the  church. 

It  is  clear  that  the  clause  means  something  positive  and 
permanent,  by  which  the  person  declares  an  adherence  to 
the  Protestant  Episcopal  Church,  its  doctrine,  discipline, 
and  worship.  Cases  may  be  imagined  in  which  one  seeking 
to  come  within  it,  is  not  yet  prepared  for  its  ordinances  of 
admission.  In  such  a  case,  fOr  the  purposes  of  voting,  the 
statute  permits  an  act  of  avowed  adhesion,  made  to  and 
with  the  assent  of  the  rector,  to  avail.  Manifestly,  a  mere 
pecuniary  contribution  is  not  within  its  scope.  The  joint 
act  should  always  be  put  in  writing. 


62     Ecclesiastical  Law  in  the  State  of  Neiv   YorJc. 

This  clause  of  the  statute  receives  ilhistration  from  a  por- 
tion of  Canon  XV.  of  1798,  "  of  the  duty  of  ministers  to  keep 
a  register."  This  remained  part  of  the  law  of  the  Church 
until  1832.  "  And  no  minister  shall  place  on  the  said  list 
the  names  of  any  persons  except  those  who,  on  due  inquiry, 
he  shall  find  to  have  heen  baptized  in  this  Church,  or  who, 
having  been  otherwise  baptized,  shall  have  been  received 
into  this  Church,  either  by  the  holy  rite  of  confirmation,  or 
by  receiving  the  holy  communion,  or  by  some  other  joint 
act  of  the  parties  and  of  a  minister  of  this  Church,  whereby 
such  persons  shall  have  attached  themselves  to  the  same." 

This  was  omitted  in  the  revision  of  1832. 

We  see  from  this  provision,  that  it  was  considered  that 
lay  baptism  was  suflicient  for  confirmation.  Wheatley  says, 
that  in  the  early  Church,  confirmation  preceded  the  eucha- 
rist,  except  there  was  extraordinary  cause  to  the  contrary, 
such  as  in  the  case  of  clinic  baptism,  of  the  absence  of  a 
bishop,  or  the  like  ;  in  which  cases  the  eucharist  is  allowed 
before  confirmation.  (Book  of  Common  Prayer,  p.  394.) 
See  the  Rubric  to  the  communion  office. 

The  statute  is  almost  word  for  word  with  the  canon  in 
force  when  it  was  passed.  We  may  presume  members  of 
the  Church  drew  it.  It  seems  quite  clear,  that  the  joint 
act  must  be  one  indicating  an  adhesion  to  the  Church,  its 
doctrines,  and  order. 

In  The  People  ex  rel.  v.  Lacoste  (Supreme  Court,  1865), 
the  Judge,  upon  a  trial  as  to  a  contested  election,  charged 
the  jury,  that  the  clause  meant  something  of  a  spiritual  or 
ecclesiastical  character. 

The  sense  of  the  phrase,  "who  shall  have  belonged  to 
such  church  for  the  last  twelve  months,"  may  be  gathered 
from  the  following  cases  :  — 

In  The  People  tJ.  Tuttle  (31  N.  Y.  Rep.  550),  it  was  held, 
that  the  words  "  stated  attendant  on  divine  worship  in  the 
said  congregation,  at  least  one  year  before  the  election," 
was  held  to  mean,  attendance  regularly,  at  regular  fixed 
times,  not  occasional.  The  attendance  must  be  personal. 
It  cannot  be  supplied  by  another.     The  regular  attendance 


The  Protestant  Episcopal  Church.  63 

of  a  wife  or  other  member  of  the  family  mil  not  suffice. 
And  no  amount  of  contribution  can  be  accepted  in  lieu 
of  this  personal  presence  statedly. 

In  the  case  of  The  People  v.  Phillips  (1  Denio,  388),  aris- 
ing* under  the  third  section  of  the  Act  of  1813,  a  decision 
was  made  pertinent  to  the  case  now  considered.  The  qual- 
ifications of  voters  at  the  first  election  are  these :  "  Every 
male  person  of  full  age,  who  has  statedly  worshiped  with 
such  church,  congregation,  or  society,  and  has  formerly 
•been  considered  as  belonging  thereto."  But  at  subsequent 
elections,  no  member  shall  be  permitted  to  vote  until  "  he 
shall  have  been  a  stated  attendant  on  divine  worship  in  the 
said  church,  congregation,  or  society,  at  least  one  year  be- 
fore such  election,  and  shall  have  contributed  to  the  support 
of  such  church,  according  to  the  usages  and  customs  there- 
of."    (Ibid.  §  7.) 

The  Court  say :  "  These  qualifications  could  neither  be 
abridged  nor  extended  by  any  act  of  the  trustees  or  of  the 
corporators.  Every  corporation  has  power  to  make  by- 
laws, but  they  must  be  consistent  with  its  charter  or  they 
will  be  invalid.  As  far  as  any  by-law  required  qualifications 
for  the  right  of  voting,  not  recognized  by  the  statute,  they 
were  wholly  unauthorized.  A  by-law  making  a  formal  act 
of  admission  by  the  trustees,  and  payment  of  a  particular 
sum  of  money  therefor,  was  not  warranted."  See  Angell  & 
Ames  on  Corp.  267,  273,  etc. 

The  highly  important  case  of  Petty  v.  Tooker  (21  N. 
Y.  Rep.  267),  is  hereafter  examined  at  length.  It  is 
attempted  to  be  shown  that  it  does  not  apply  to  Episcopal 
churches  incorporated  under  the  first  section.  It  adjudged 
that  corporations  formed  under  the  third  section  were  not 
denominational,  and  individuals  did  not  lose  their  right  to 
vote  by  abandoning  the  doctrine  and  ecclesiastical  organi- 
zation of  the  Church. 

There  are  some  disqualifications  under  the  general  law 
of  the  State  which  I  proceed  to  notice. 

Infants.  The  rules  of  the  common  law,  it  is  to  be  noticed, 
applicable   to   civil   corporations  established  by  statute  or 


64      Ecclesiastical  Law  in  the  State  of  New   York. 

charter,  apply  to  iucorporations  of  an  ecclesiastical  char- 
acter.   (Robertson  v.  Bullions,  11  N.  Y.  Rep.  243.) 

The  rule  requiring  voters  to  he  adults  is  taken  from  the 
common  law.  In  the  case  of  Trinity  Church,  New  Rochelle, 
under  a  charter  of  1762,  where  the  phrase  was  merely  "  the 
members  in  communion  with  the  Church  of  England,"  etc., 
the  opinion  was  given  that  the  votes  of  minors  were  ille- 
gally admitted. 

"  The  members  of  corporations  may  be  natural  persons, 
that  is,  in  municipal  corporations,  males  of  years  of  major- 
ity." (Grant  on  Corporations,  p.  5.)  "  In  general,  infants 
cannot  be  corporators."  (p.  6.)  "  An  infant  cannot  be  an 
attorney,  bailiff,  factor,  or  receiver,"  (McPherson  on  Infancy, 
p.  448) ;  "  nor  steward  of  a  manor,  or  of  the  court  of  a  bish- 
op, because  he  has  not  sufficient  knowledge  or  experience  to 
use  the  office  ;  nor  can  he  appoint  a  deputy,"  (Hobart,  525)  ; 
"  nor  can  he  be  a  member  of  the  House  of  Commons." 
(McPherson,  448  ;  2  Inst.  47.) 

The  statement  in  some  books  (Bingham,  for  example), 
that  a  minor  may  be  the  mayor  of  a  city,  is  not  now  law,  if  it 
ever  was.  (Grant  on  Corporations,  422  ;  Claridge  v.  Evelin, 
5  Barn.  &  Aid.  81.) 

Women.  Here  another  rule  of  the  statute  excluding 
women  is  the  rule  of  the  common  law.  In  the  case  before 
noticed,  under  the  charter  of  Trinity  Church,  New  Rochelle, 
the  admission  of  votes  by  females  was  deemed  improper. 

In  general,  v>'omen  cannot  be  corporators,  although  in 
some  hospitals  they  may  be  so ;  and  there  is  one  instance 
in  the  books,  of  a  corporation  of  brethren  and  sisters  in- 
vested with  municipal  powers  to  a  certain  extent.  (Grant 
on  Corporations,  p.  6 ;  Palmer's  Reps.  77 ;  Sutton  Hospital 
Case,  Coke's  Rep.  vol.  ix.  part  10.) 

Proxies.  Voting  by  proxy  is  scarcely  ever  allowable,  except 
in  cases  of  the  right  being  expressly  given  by  charter  or 
prescription,  and  in  the  case  of  peers  in  the  House  of  Lords. 
Personal  presence  is  essential.  (Rex  v.  Ellis,  17  State  Trials, 
822.)  Tlie  language  of  Chancellor  Walworth  in  Phillips 
V.  Wickham  (I  Paige,  598),  is  decided  and  comprehensive 


The  Protestant  Episcopal  Churcli.  65 

upon  this  point.  See  also  the  case  of  the  Dean  and  Chap- 
ter, Sir  John  Davies'  Rep.  129,  and  Taylor  v.  Griswold, 
Supreme  Court  of  New  Jersey  (2  Green's  Rep.),  deciding", 
that  it  required  express  legislative  authority  to  authorize  a 
corporation  to  make  a  by-law  admitting  votes  by  proxy. 
See  also  Kent's  Comm.,  vol.  ii.  p.  229. 

§  14.  Wli^n  Held.  "  Such  election  shall  be  holden  imme- 
diately after  morning  service."  (§  1  of  Act  of  1813.)  Of 
course  the  service  should  take  place.  It  may  be  doul)ted 
whether  an  election,  without  such  service  being  held,  would 
be  valid.  In  the  absence  of  express  authority  all  that  can 
safely  be  said  is,  that  it  would  be  very  inadvisable  to  omit 
it. 

Notice  not  Essential.  It  is  customary  and  expedient  to  give 
uotice  of  the  stated  election  two  Sundays  previous ;  but  the 
statute  does  not  direct  any  notice,  and  an  election  is  good 
without  it.  The  parishioners  are  assumed  to  know  the  day 
in  Easter-week  selected.  (Wilson  v.  Dennison,  Ambler's 
Rep.  182.) 

§  15.  Presiding  Officer.  The  rector,  or  if  there  be  none,  or 
he  be  absent,  one  of  the  church-wardens  or  vestrymen,  shall 
preside,  and  receive  the  votes  of  the  electors,  and  be  the 
returning  officer.     (§  1  of  Act  of  1813.) 

In  The  People  v.  Peck  (1  Wendell,  604),  it  was  declared, 
that  no  one  but  the  persons  designated  under  another  sec- 
tion (elders  or  church-wardens),  could  preside  at  an  election, 
if  present.  The  appointment  of  others,  when  one  of  the 
class  were  present,  was  illegal,  and  vitiated  an  election. 

It  is  to  be  noticed  that  the  language  in  relation  to  the 
presiding  officer  is  peculiar.  "  The  rector,  or  if  there  be 
none,  or  he  be  absent,  one  of  the  church-wardens  or  vestry- 
men, shall  preside,  and  receive  the  votes  of  the  electors, 
and  be  the  returning*  officer." 

The  class  is  designated  out  of  which  the  presiding  officer, 
in  absence  of  a  rector,  shall  be  chosen.  No  order  of  pre- 
siding is  declared.  If  any  warden  or  a  vestryman  preside, 
the  course  is  regular.  But  if  a  claim  is  made  by  a  warden 
over  his  brother- warden,  or  over  vestrymen,  the  only  mode 


66      Ecclesiastical  Law  in  the  State  of  New  York. 

seems  to  be,  to  settle  it  by  the  votes  of  those  present.  The 
custom  has  been  for  a  warden  to  preside ;  but  my  opinion 
is,  that  the  voters  present  may  choose  any  one  of  the  des- 
ignated classes  to  do  so.  In  the  absence  of  express  reg- 
ulation, this  right  is  an  incident  to  every  corporate  or 
associated  body.     (Wilcox  on  Corporations,  1-59.) 

The  presiding  officer  is  to  receive  the  votes,  and  make 
the  return.  By  force  of  this  language,  its  accepted  con- 
struction, and  general  law,  he  is  the  judge  of  qualifications 
of  the  voters.  There  is  no  appeal  to  the  meeting  from  his 
decision.  The  Supreme  Court,  on  application,  determines 
the  validity  of  the  election,  and  the  propriety  of  admitting 
or  rejecting  votes. 

It  is  sufficient  to  notice  here  that  it  is  an  inflexible  rule, 
that  the  Court  will  not  set  aside  an  election  unless  the 
result  would  have  been  changed,  had  the  decision  of  the 
presiding  officer  been  correct.     (31  N.  Y.  Rep,  550.) 

The  rector  or  presiding  officer  has  a  vote  as  a  member ; 
but  there  is  no  provision  allowing  a  casting  or  double  vote, 
upon  an  equal  division. 

A  plurality  of  votes  is  insufficient.  A  majority  of  all  the 
votes  is  necessary,  that  is,  a  majority  of  the  legal  votes,  cast 
for  an  eligible  person. 

In  Claridge  v.  Evelyn  and  others  (5  Barn.  &  Aid.  81),  an 
infant  had  received  a  majority  of  the  votes  cast  for  the  office 
of  Clerk  of  the  Court  of  Bequests.  The  voters  for  him  were 
informed  of  his  disqualification.  The  plaintiff  received  a 
minority  of  votes.  The  Court  held,  that  the  votes  for  the 
infant  were  thrown  away,  and  that  the  plaintiff  had  been 
duly  elected,  receiving  a  majority  of  votes  really  cast. 

So  in  Rex  v.  Hawkins  (10  East,  218),  it  is  ruled,  that  if 
the  incapacity  is  discovered  before  the  election  is  closed,  the 
voters  may  cast  their  votes  anew,  for  some  one  qualified. 
But  if  they  do  not,  the  voice  of  such  as  do  vote  prevails. 

If  the  assembly  is  properly  convened,  and  votes  are  cast, 
but  the  majority  neglect  to  vote,  yet  the  election  will  be 
valid.  Their  neglect  is  considered  as  equivalent  to  an  as- 
sent to  the  decision  of  those  who  do  vote.    (Rex  v.  Foxcroffc, 


The  Protestmit  Episcopal  Church.  67 

2  Burrows,  1020 ;  Crawford  v.  Powell,  2  Burrows,  1016 ; 
Gosliu  V.  Vesey,  7  Queen's  Bench,  439 ;  Also  Regina  v. 
The    Mayor  of  Leeds,  7  Adol.  &  Ellis,  963.) 

The  case  of  Gosliu  v.  Vesey,  ut  supra,  contains  a  sum- 
mary of  the  whole  law. 

It  seems  to  me  that  these  cases  warrant  the  conclusion, 
that  a  blank  vote  is  not  to  be  counted.  See,  especially,  the 
reasoning  in  Gosliu  v.  Vesey. 

By  our  statute,  for  the  first  election  the  decision  is  to  be 
Ijy  a  majority  of  voices,  that  is,  of  voters.  For  the  subse- 
quent elections,  there  is  no  similar  phrase.  The  common- 
law  rules  will  therefore  control. 

As  to  the  persons  eligible,  as  there  is  no  special  provision, 
it  may  be  sufficient  to  say,  that  they  may  be  chosen,  who  are 
competent  to  choose.  The  qualifications  of  an  elector  are 
the  qualifications  of  the  officers.  (Wilcox  on  Corporations, 
§  480.) 

After  the  ballots  have  been  received  without  challenge  or 
objection,  the  right  to  inquire  into  the  character  of  the 
voters  ceases.  The  duty  is  then  to  count  the  votes,  and 
return  the  number  received,  and  the  names  of  the  parties 
having  the  greater  number.  (People  v.  White,  11  Abbott, 
168.) 

The  judges  at  an  election  set  forth  in  their  certificate, 
that  one  set  of  candidates  had  a  majority  of  the  votes  cast, 
but  that  after  the  result  had  been  declared,  satisfactory  evi- 
dence was  produced  to  them,  that  part  of  such  votes  were 
illeg'al ;  and  that  setting  them  aside,  the  other  set  of  candi- 
dates were  elected,  which  they  therefore  certified  to  be  the 
result.  It  was  held,  that  the  certificate  destroyed  itself,  and 
that  the  first  set  of  candidates  were  to  be  deemed  elected. 
(Hart  V.  Harvey,  32  Barbour's  Rep.  55.) 

It  was  ruled  that  the  inspectors  as  judges  must  decide 
when  the  vote  is  offered  ;  and  the  decision  then  made,  if  in 
favor  of  receiving  the  vote,  is  final.  From  the  necessity 
of  the  case,  a  decision  cannot  be  delayed  until  after  the  vote 
is  deposited  in  the  box.  How  are  the  inspectors  to  know 
which  of  the  ballots  should  be  withdrawn  ? 


68      Ecclesiastical  Law  in  the  State  of  New   York. 

In  general,  a  certificate  of  election  is  "prima  facie  evidence 
of  the  right  of  the  parties  to  the  office ;  but  not  where 
the  facts  stated  show  they  were  not  elected. 

§  16.  "  The  presiding  officer  shall  enter  the  proceedings 
in  the  hook  of  the  minutes  of  the  vestry,  and  shall  sign  his 
name  thereto,  and  offer  the  same  to  as  many  of  the  electors 
present  as  he  shall  think  fit,  to  be  by  them  also  signed  and 
certified."     (§  1  of  Act  of  1813.) 

§  17.  "  The  church-wardens  and  vestrymen,  to  be  chosen 
at  any  of  the  said  elections,  shall  hold  their  offices  until  the 
expiration  of  the  year  for  which  they  shall  be  chosen,  and 
until  others  be  chosen  in  their  stead."     (Ibid.) 

This  provision  must  be  considered  in  connection  with  the 
second  section  of  the  Act  of  April  16,  1844,  chap.  158. 
Whenever  there  shall  have  been  an  omission  or  neglect 
of  any  church,  etc.,  at  their  stated  annual  meeting,  to 
choose  any  of  the  trustees,  church-wardens,  vestrymen,  or 
other  officers,  such  church,  etc.,  shall  not  be  deemed  or 
taken  to  have  been  thereby  dissolved  ;  but  the  trustees, 
church-wardens,  vestrymen,  or  other  officers  then  in  office 
at  the  time  of  such  omission,  shall  be  deemed  and  taken  to 
be  the  legal  officers  of  such  church,  etc.,  and  shall  continue 
to  hold  their  offices  until  others  be  chosen  in  their  stead : 
Provided,  that  elections  to  supply  such  omissions  shall  be 
made  within  one  year  after  their  occurrence  respectively. 

It  may  be  considered,  I  think,  that  the  omission  spoken 
of  in  this  last  act,  may  signify  as  well  an  omission  to  elect 
on  the  stated  day,  although  the  meeting  for  that  purpose  is 
held,  as  an  omission  to  hold  any  election. 

The  following  case,  which  occurred  in  1863,  led  to  a 
consideration  of  these  provisions.  At  an  annual  election 
of  the  vestry  of  an  Episcopal  Church,  the  full  number  of 
vestrymen  was  duly  elected,  and  one  of  the  former  wardens. 
There  was  a  tie  vote  between  the  other  former  warden 
and   a  stranger. 

Now,  cases  of  a  similar  character  may  easily  be  supposed. 
If  a  given  number  of  the  old  vestrymen  receive  a  majority 
of  legal  votes,  and  the  election  fails  as  to  the  rest,  as  by 


The  Protestant  Episcopal   Church.  69 

reason  of  a  tie,  or  that  none  of  them  have  a  majority  of 
the  votes  cast,  the  other  vestrymen  are  ascertained  and 
continue.  If  they  hohl  over,  the  vestry  is  complete,  neither 
exceeding  nor  falling  short  of  the  prescribed  number. 

And  so  in  cases  under  sections  3  and  C  of  the  General  Act 
of  1813,  if  one  or  two  persons  of  the  class  to  be  elected  are 
old  trustees  rechosen,  and  no  election  takes  place  as  to 
the  others  or  other,  the  persons  holding  over  are  definite 
and  known. 

But  suppose  a  definite  number  of  vestrymen,  being  new 
persons,  are  duly  chosen,  there  is  no  mode  pointed  out  of 
settling  who  of  the  old  vestrymen  hold  over.  The  number 
must  not  exceed  eight,  and  the  body  should,  if  practicable, 
be  kept  complete.  So  if  a  third  person  was  chosen  warden, 
or  a  third  person  a  trustee,  of  the  class  under  section  6,  the 
like  difficulty  would  exist. 

Both  provisions  cited  admit  of  the  construction,  that  if 
the  election  fails  as  to  a  single  vestryman  or  trustee,  it  fails 
wholly,  and  all  the  former  officers  hold  over  until  a  new 
election  within  the  year.  This  construction  is  not  reason- 
able, as  it  would  defeat  the  express  will  of  the  corporators 
as  to  those  whom  they  have  actually  chosen.  Hence,  it 
seemed  to  the  writer,  that  where  the  statute  could  be  ob- 
served and  reconciled  with  that  will,  it  might  legally  be 
done ;  and  hence,  that  in  the  case  stated,  the  election  as 
to  the  vestrymen  and  the  old  warden  was  valid,  and  that 
the  other  former  warden  held  over. 

But  in  the  other  cases  above  suggested,  I  do  not  see  how 
the  consequence  is  to  be  avoided,  that  if  there  is  a  failure 
even  as  to  one,  when  seven  new  vestrymen  are  duly  chosen, 
there  is  no  election,  and  the  old  vestrymen  hold  over.  I 
speak  without  confidence  where  is  no  guide  in  any  author- 
ity of  which  I  am  aware. 

There  is  no  rule  of  the  common  law  by  which  a  person 
elected  continues  in  office  after  the  expiration  of  the  term 
limited  by  law.  Charters  or  special  statutes  provide  fre- 
quently for  this.  (The  People  v.  Tiernan,  8  Abbott,  359.) 
There  are  cases,  however,  in  which  the  rights  of  third  per- 


70     Ecclesiastical  Laiu  in  the  State  of  New   York. 

sons  are  involved,  in  which  an  officer  is  deemed  to  continue 
in  his  functions. 

A  party  claiming  to  hold  over  under  such  a  provision, 
must,  upon  a  quo  warranto,  show  specially,  or  plead,  that  no 
one  has  at  any  time  been  chosen  to  succeed  him.  It  is  not 
enough  that  an  attempt  has  been  made  to  choose  a  new 
trustee  and  failed,  if  there  was  time  after  such  failure  to 
have  had  an  election,  when  a  choice  might  have  been  made. 
(The  People  v.  Phillips,  1  Denio,  388.) 

§  18.  The  church- wardens  and  vestrymen  shall  have 
power  to  call  and  induct  a  rector  to  such  church  or  con- 
gregation, as  often  as  there  shall  be  a  vacancy  therein. 
(§  1  of  Act  of  April  5, 1813.) 

In  this  provision,  the  call  or  election,  and  communication 
to  the  party,  is  the  presentation  of  the  English  law. 

The  induction  of  that  law  consists  of  some  act  giving  the 
party  possession  of  the  glebe  and  parsonage  if  any,  the  use 
and  control  of  the  church  edifice  to  a  certain  extent,  and  re- 
ception of  rents  and  income  given  for  the  support  of  a  rector 
for  the  time  being.  The  clerk  is  not  complete  incumbent 
till  after  induction,  or  as  the  common  law  calls  it,  corporal 
possession.  It  is  an  act  of  a  temporal  nature.  It  is  so, 
although  it  is  an  act  of  spiritual  persons  about  a  spiritual 
matter.  It  instates  the  party  in  full  possession  of  the  tem- 
poralities. And  the  parson  may  maintain  an  action  of  tres- 
pass on  the  glebe  land,  although  he  has  not  taken  actual 
possession  of  it.     (Bulwer  v.  Bulwer,  2  B.  &  Aid.  470.) 

But  with  us,  such  an  action  could  only  be  maintained  by 
the  corporation  in  its  corporate  name,  through  the  trustees. 
This  is  distinct  from  the  right  of  enjoyment,  which  is  in  the 
minister. 

Under  section  21  of  this  chapter  {post),  I  have  examined 
minutely  the  points  as  to  a  rector's  interest  in,  and  posses- 
sion of,  the  property  belonging  to  a  church. 

§  19.  "  No  meeting  or  board  of  such  trustees  shall  be 
held,  unless  at  least  three  days'  notice  thereof  shall  be  given 
in  writing,  under  the  hand  of  the  rector,  or  one  of  the 
church-wardens."     (§  1  of  Act  of  1813.) 


The  Protestant  Episcopal  Church.  71 

Perhaps  this  does  not  interfere  with  the  right  of  a  vestry 
to  pass  a  by-law  or  order  fixing-  stated  days  for  a  vestry 
meeting.  Of  such  days  the  members  are  chargeable  with 
notice,  although  it  is  a  custom  to  give  the  special  notice 
even  in  such  cases.  (Wilcox  on  Corp.,  §  59 ;  Wilson  v.  Den- 
nison,  Ambler's  Rep.  82  ;  4  Barn.  &  Cress.  441  ;  Smith 
V.  Lane,  21  N.  Y.  Rep.  296.)  It  is  very  common  for  vestries 
to  fix  upon  some  special  days  for  their  meetings.  But  at 
least,  if  anything  of  moment  is  contemplated,  it  is  prudent 
to  give  the  notice. 

§  20.  "  No  such  board  shall  be  competent  to  transact  any 
business,  unless  the  rector,  if  there  be  one,  and  at  least  one 
of  the  church-wardens,  and  a  majority  of  the  vestrymen, 
be  present."     {§  1  of  Act  of  1813.) 

1.  Thus  far,  the  provision  is  very  explicit.  For  the  con- 
stituting of  a  legal  board,  competent  to  act,  there  must  be 
present  the  rector,  a  warden,  and  a  majority  of  the  vestiy- 
men.  There  are  thus  three  integral  parts  of  the  body, 
which  personally,  as  in  the  case  of  the  rector,  or  by  repre- 
sentation, as  in  the  cases  of  the  wardens  and  vestrymen, 
must  attend. 

2.  Vacancy.  In  case  of  there  being  a  vacancy  by  death, 
resignation,  or  otherwise,  of  both  the  wardens,  no  legal 
meeting  can  be  had  or  act  performed.  An  election  to  fill 
the  vacancies  must  be  had.  The  statute  provides  for  this 
conveniently. 

And  so  if  the  vestrymen  are  reduced  below  five  in  number. 

But  I  am  inclined  to  think,  that  if  the  defect  is  in  the 
number  of  vestrymen,  still  leaving  five,  and  the  board  is 
otherwise  competent,  the  power  of  the  vestry  is  unimpaired. 

The  statute  requires  only  a  majority  of  the  vestrymen  to  he 
present.  No  doubt  a  majority  of  those  to  be  elected,  the  full 
number  of  eight,  is  intended  ;  not  a  majority  of  those  sur- 
viving or  remaining.  (Rex  v.  Morris,  4  East,  26 ;  Rex  v. 
Thornton,  Ibid.  307  ;  Rex  v.  Miller,  6  T.  R.  278.) 

Even  if  the  phrase,  "  for  the  time  being,"  is  used  in  a 
charter,  a  majority  of  surviving  members  of  a  definite  class 
is  not  enough.     And  in  the  leading  case  of  The  King  v. 


72      Ecclesiastical  Law  hi  the  State  of  Ne2v   York. 

Devonshire  (1  Baru.  &  Cress.  609),  the  words,  "  remaining 
and  surviving,"  used  in  a  charter,  were  held  to  mean  only, 
"  for  the  time  being." 

A  careful  examination  of  Chief  Justice  Abbott's  opinion 
in  this  last  case,  and  of  The  King  v.  Bellringer  (4  T.  R. 
810),  stated  by  him,  will,  I  think,  warrant  the  position  that 
five  vestrymen  will  be  enough,  where  there  are  vacancies  as 
to  the  others.  His  language  is,  "  That  The  King  v.  Bell- 
ringer  had  decided,  that  where  an  election  is  to  be  made  by  a 
body  consisting  of  a  definite  number,  a  good  elective  assem- 
bly cannot  be  had  without  the  presence  of  such  a  number 
of  persons  as  will  constitute  a  majority  of  the  entire  definite 
number,  although  the  number  present  may  constitute  a 
majority  of  the  entire  number  existing.  From  the  time  of 
The  King  v.  Bellringer,  this  has  been  taken  as  a  general  and 
established  rule  of  corporation  law." 

The  converse  of  the  proposition,  I  take  it,  must  be  true. 
If  a  majority  of  the  definite  body  when  full,  is  present,  it 
must  be  sufficient.  Yet  it  would  be  prudent  to  fill  up  the 
vacancies  before  any  important  act  is  performed. 

3.  It  is  quite  clear  that  no  act  is  technically  legal,  unless 
had  at  a  meeting  thus  composed  of  a  rector,  (if  one,)  a 
warden,  and  a  majority  of  vestrymen.  Yet,  for  current  and 
ordinary  business,  not  affecting  property  or  rights,  a  cus- 
tom has  arisen  of  transacting  it  at  an  irregular  meeting, 
and  obtaining  a  subsequent  approval. 

4.  Equality  of  Votes.  But  what  are  the  positions  of 
rector,  wardens,  and  vestrymen  when  thus  assembled  ? 

The  right  of  presiding  is  vested  in  the  rector  by  another 
clause  ;  or  if  there  be  none,  in  a  church-warden.  With  this 
qualification,  I  consider  every  thing  integral  and  dis- 
tinctive, to  be  lost.  The  vestry  is  a  board  of  trustees  es- 
tablished by  statute,  and  governed  by  its  prescriptions  or 
general  principles  of  law.  The  members  are  then  upon  an 
equality  of  power  as  to  every  corporate  resolution  or  act, 
except  as  to  a  casting  vote  in  the  presiding  officer,  if  the 
view  of  that  provision,  taken  hereafter,  is  correct.  (See 
^21,  post.) 

I  cite  some  pertinent  authorities :  — 


The  Protestai'd  Eimccypal  Church.  73 

Thus  in  the  case  of  St.  Mary's  Church,  Philadelphia,  (7 
Serg.  &  Rawle,  517,)  the  trustees  of  a  church  consisted  of 
three  clerical  and  eight  lay  members.  The  Court  say  : 
"When  legally  assembled,  the  majority  of  voices  govern; 
but  every  integral  part  must  be  present  at  a  corporate 
assembly,  by  a  majority,  at  least,  of  its  proper  members ; 
though  the  major  part  of  all  present  when  assembled  are 
competent  to  do  a  corporate  act. 

So  in  Beck  v.  Hanson  (9  Foster's  N.  H.  Rep.  213),  by  the 
charter  of  Portsmouth,  the  board  of  aldermen  and  board  of 
councilmen  formed,  in  their  joint  capacity,  a  body  called 
the  City  Council.  And  a  majority  of  each  board  was  to 
constitute  a  quorum  for  business  ;  that  is,  business  in  its 
own  chamber.  Each  board  voted  separately  to  meet  in  con- 
vention on  a  given  day  to  choose  city  officers.  A  minority 
of  the  board  of  aldermen  appeared.  But  the  members  of 
the  Common  Council  and  this  minority  made  a  majority 
of  the  whole  number  of  both  boards.  They  chose  an  officer 
by  a  majority  of  voters  present,  and  the  election  was  held 
valid.  After  the  agreement  of  the  aldermen  to  meet,  it 
was  not  necessary  that  a  majority  of  them  should  appear. 

See  the  case  of  The  King  -v.  Brower,  1  Barn.  &  Cress. 
492,  commented  upon  in  Whiteside  v.  The  People,  26 
Wendell,  643. 

In  Ex  parte  Rogers  (7  Cowen's  Rep.  527),  the  question 
arose  under  the  following  statutory  provision  :  "  There 
shall  continue  to  be  appointed  two  officers,  by  the  name 
of  Canal  Appraisers,  who,  being  associated  with  any  acting 
canal  commissioner,  shall  be  the  appraisers  of  damages  in 
the  cases  hereafter  specified."     (Laws  of  1825,  chap.  275.) 

Mr.  Young  was  a  canal  commissioner,  and  Messrs.  Wood 
and  Selden,  appraisers.  They  met,  heard  witnesses,  and 
discussed  the  merits  of  an  application  for  damages,  and 
separated.  On  coming  together  subsequently,  Mr.  Young 
refused  to  act,  and  declared  himself  no  longer  a  member. 
The  two  appraisers  assessed  the  damages  at  a  certain  sum, 
and  signed  a  certificate  thereof.  On  motion  for  a  manda- 
mus, the  Court  held  the  proceeding  valid,  and  granted  a 
peremptory  mandamus  for  payment. 


74      Ecclesiastical  Law  in  the  State  of  New   York. 

In  a  note  by  Justice  Cowen,  a  number  of  cases  are  cited. 
He  says  :  "  Yet  in  several  cases  (indeed,  this  is  generally  so, 
1  Barn.  &  Cress.  492),  the  requisite  parts  being-  present, 
they  constitute  one  body,  each  individual  having  but  a  single 
vote  ;  the  integral  part,  composed  of  the  lesser  number,  be- 
ing in  this  way  within  the  power  of  the  more  numerous,  for 
want  of  an  absolute  veto.  Thus  in  the  case  of  mayor  and 
aldermen,  when  all  are  assembled,  the  vote  of  the  mayor, 
one  of  the  integral  parts,  weighs  no  more  than  that  of  a 
single  alderman." 

He  then  notices  the  cases  in  which  a  mayor,  after  busi- 
ness had  begun,  left  the  meeting.  In  the  instances  in  which 
it  has  been  held,  that  an  election  after  he  withdrew  was 
void,  it  was  plain,  that  the  charters  made  it  essential  that  he 
should  be  present  at  the  consummation  of  the  act. 

So  in  relation  to  dean  and  chapter.  It  is  a  body  corpo- 
rate spiritual,  consisting  of  mauy  able  persons  in  the  law, 
namely,  the  dean  who  is  chief,  and  his  prebendaries ;  and 
they  together  make  the  corporation.  (Burns'  Ecc.  Law, 
2-92.)  It  is  not  a  perfect  corporation  without  the  dean. 
(Ibid.  94.)  Yet  it  is  certain  the  dean  is  one,  and  but  one 
member  of  the  body  corporate.     (Ibid.  117.) 

Under  particular  local  statutes,  questions  as  to  the  neg- 
ative power  of  a  dean  arose.  See  particularly  the  case  of 
the  Cathedral  Church  of  Carlyle,  stated  fully  in  2  Burns, 
113,  where  it  is  shown,  that  such  a  power  is  contrary  to  the 
general  law  of  the  land,  and  must  be  most  expressly  con- 
ferred. 

At  page  117,  is  an  opinion  of  a  very  able  advocate  and 
two  learned  counsel,  which  was  acquiesced  in  :  "  That  by 
the  general  rule  of  law,  in  all  corporations  aggregate,  the 
act  of  the  major  part  shall  bind  the  whole ;  for  it  is  said, 
uhi  major  pars  ihi  Mum.  But  though  the  law  was  so  in  the 
case  of  corporations  aggregate,  yet  as  in  those  corporations 
there  is  generally  a  chief  member  of  the  corporation,  as 
dean  and  chapter,  master  and  fellows,  mayor  and  common- 
alty, the  consent  of  the  head  member  has,  by  many  local 
statutes,  been  made  necessary  in  corporate  acts. 


The  Protestant  Episcopal  Church.  75 

Hence  it  was  found  necessary,  in  order  to  prevent  confu- 
sion, by  an  act  of  Parliament  to  abrogate  all  private  local 
statutes  in  every  such  corporate  body,  which  were  contrary 
to  the  said  rule  of  the  common  law.  And  therefore  the  act 
of  33d  Henry  8th,  declares,  that  every  rule  or  statute  made 
or  to  be  made,  whereby  any  grant,  lease,  gift,  or  election  by 
the  majority  of  a  corporation,  shall  be  let  or  hindered,  shall 
be  absolutely  void  and  of  no  effect.  A  presentation  by  the 
major  part  must  bind  the  lesser;  otherwise  differences  in 
the  body  could  never  be  terminated,  nor  could  any  corporate 
act  be  done  without  the  assent  of  the  dean. 

5.  The  rector  has  not  power  to  terminate  or  adjourn  a 
yestry  meeting  after  it  has  been  convened  and  business  is 
before  it.  This  belongs  to  the  majority  of  those  assem- 
bled, himself  included. 

Thus  in  Stoughton  v.  Reynolds  (2  Strange,  1045,  and  For- 
tescue's  Rep.  168),  Mr.  Stoughton  moved  for  a  mandamus 
to  the  chancellor  of  the  diocese  to  admit  him  as  church- 
warden of  the  Parish  of  All  Souls.  The  chancellor  returned 
that  he  considered  Mr.  Stoughton  not  to  have  been  chosen, 
but  some  one  else.  The  action  was  for  a  false  return.  It 
was  found  by  special  verdict,  that  the  vicar  had  the  nomina- 
tion of  wardens.  That  on  the  regular  appointed  day  for 
choosing,  the  vicar  nominated  Mr.  Lowth,  and  the  parish- 
ioners the  plaintiff.  That  upon  a  dispute  arising,  whether 
the  parishioners  could  choose  the  plaintiff,  the  vicar  ad- 
journed the  meeting  to  the  next  morning ;  but  that  part 
of  the  parish  stayed  behind  and  elected  him.  The  other 
party  chose  another  person  the  next  day.  The  question 
was,  whether  the  vicar  who  presided  could,  ex  mero  motii, 
adjourn  the  election  of  wardens  without  any  previous  notice 
or  consent  of  the  meeting' ;  and  after  the  persons  present 
had  elected  one,  could  proceed  to  elect  another. 

It  was  held  by  the  King's  Bench,  that  the  adjournment 
was  void.  All  the  judges  concurred.  Lord  Hardwicke  said, 
that  admitting  the  vicar  had  the  power  of  presiding,  it  did 
not  follow  that  he  had  the  power  of  adjourning. 

In  Baker  &  Downing  v.  Wood  (1  Curtis'  Rep.  552),  Sir 


V6      Ecclesiastical  Law  in  the  State  of  New   York. 

Herbert  Jenner  comments  upon  this  case,  stating-  it  very 
fully,  and  says  :  "  Most  undoubtedly  in  such  circumstances, 
there  is  no  authority  for  the  power  assumed  and  exercised 
by  the  chairman  in  that  case.  It  was  calculated  to  put 
an  end  to  the  privilege  possessed  by  the  parishioners  of 
selecting  a  person  for  church-warden,  and  to  put  a  stop 
to  all  discussion  at  a  meeting  called  for  the  purpose  of  an 
election." 

After  citing  the  case  of  The  King  v.  The  Commissarv 
of  the  Bishop  of  Winchester  (7  East's  Rep.  573),  he  says  : 
"  To  the  extent  to  which  this  case  goes,  it  supports  the 
authority  of  the  case  of  Stoughtou  v.  Reynolds,  that  the 
chairman,  as  such,  has  not  the  power  to  adjourn  the  vestry 
at  any  time,  and  under  any  circumstances  he  may  think 
proper." 

Reference  is  then  made  by  the  learned  judge  to  the  case 
of  The  King  v.  The  Archdeacon  of  Chester  (1  Adol.  &  Ellis, 
342),  as  decisive  of  certain  points.  A  vestry  being  to  be 
held  in  Manchester  for  the  election  of  church-wardens, 
notice  was  given  that  the  meeting  would  be  held  at  the 
parish  church,  but  that  if  a  poll  was  demanded,  it  would  be 
adjourned  to  the  Town  Hall.  • 

After  a  show  of  hands,  a  poll  was  demanded,  and  the 
chairman  adjourned  to  the  Town  Hall,  without  taking-  the 
sense  of  the  meeting.  It  was  held,  that  the  proceeding 
was  regular,  no  business  having  been  interrupted,  and  the 
adjournment  being  part  of  -the  original  appointment. 

So  in  Downing'  v.  Wood  iit  supra,  the  original  notice  ap- 
prised the  parties  of  an  adjournment  upon  a  certain  event 
occurring,  and  such  adjournment  was  entirely  reasonable 
and  convenient. 

And  so  in  The  Queen  v.  Doyly  (4  Perry  &  Davison's  Rep. 
58),  the  power  to  adjourn  a  poll  to  a  more  convenient  time 
and  place,  when  it  has  been  demanded,  is  recognized  to  be 
in  the  chairman,  of  course  the  rector,  when  present. 

In  such  cases,  the  power  is  for  the  better  furtherance  and 
proper  exercise  of  the  business  to  be  done,  not  the  break- 
ing up  of  a  business  properly  commenced  before  the  proper 
body. 


The  Protestant  Episcopal   Church.  77 

6.  It  follows  from  these  principles  and  authorities,  as  I 
apprehend,  that  a  rector  cannot,  by  withdrawing  from  a 
vestry  once  duly  constituted,  prevent  its  finishing  business 
entered  upon,  or  from  entering  upon  business. 

It  is  quite  clear,  that  if  his  continued  presence  is  essen- 
tial, as  an  integral  member,  for  every  act  while  considered 
and  until  decided,  so  is  that  of  one  warden  and  five  vestiy- 
men.  The  power  to  arrest  action  by  withdrawing  is  as 
absolute  in  a  warden,  or  in  vestrymen  reducing  the  number 
below  five,  as  in  the  rector. 

In  The  King  v.  Norris  (Barnardiston's  Rep.  385),  the 
charter  made  it  necessary  for  the  mayor  to  be  present  at  an 
assembly  for  admitting  freemen.  At  such  a  meeting  he  was 
present,  and  admitted  one  freeman.  A  list  of  others  was 
delivered  in,  when  he  left  the  assembly,  and  would  not 
admit  them.  After  his  departure  they  were  admitted, 
and  it  was  held  good. 

It  is  true  this  case  is  questioned  in  Rex  v.  Butler,  8  East, 
393,  and  Rex  v.  Gaborian,  11  East,  87.  In  these  cases,  the 
assent  of  the  mayor  to  the  election  of  an  officer  was  made 
indispensable. 

This  case  of  The  King  v.  ^Norris  is  cited  with  approba- 
tion in  the  case  of  Wliiteside  v.  The  People,  26  Wendell, 
643,  in  the  Court  of  Errors. 

There  are  other  authorities  proceeding  upon  the  principle 
that  by  unequivocal  language  of  statute  or  charter,  the  con- 
sent of  the  head  officer  (the  mayor  generally),  was  made 
essential  to  the  consummation  of  the  act.  These  cases  are 
stated  in  Justice  Cowen's  note,  before  referred  to  in  Rogers' 
case,  {ante,  p.  73).  It  cannot,  I  think,  be  said,  that  the 
provision  now  considered  positively  requires  the  continued 
presence  of  the  rector  or  a  warden  for  every  act,  thus  sub- 
stantially giving  him  a  veto  upon  the  proceedings. 

Upon  the  whole,  I  consider  the  true  conclusion  to  be,  that 
when  once  a  vestry  is  fully  assembled,  a  rector,  a  warden, 
and  five  vestrymen,  it  becomes  a  massed  assembly,  governing 
itself  by  the  rules  of  common  law  in  analogous  cases  ;  that 
the  right  of  presiding  is  a  privilege  and  a  duty.     If  vacated 


78      Ecclesiastical  Laiv  in  the  State  of  Netv  YorJc. 

wilfully  or  not  from  necessity,  it  cannot  dissolve  the  vestry, 
or  make  its  action  illegal. ^ 

7.  The  statute  empowers  a  warden  to  call  a  meeting. 
But  if  so  convened,  and  the  rector  refuse  to  attend, 
intentionally  to  defeat  or  prevent  the  consideration  of  a 
measure  within  the  province  of  the  vestry  to  act  upon, 
what,  if  any,  is  the  redress  ? 

In  the  English  cases,  in  which  the  power  to  convene  is 
lodged  in  a  head  officer,  and  his  presence  is  indispensable 
to  constitute  the  body,  his  obstinate  refusal  to  convene  it, 
or  to  attend,  is  an  abuse  of  power,  a  neglect  of  a  trust 
which  the  King's  Bench  will  punish,  and  compel  him  to 
do  it  by  mandamus,  and  will  allow  a  criminal  information 
to  be  filed  against  him.^ 

But  even  if  any  similar  resort  to  a  civil  tribunal  were  pos- 
sible in  our  country,  it  is  most  earnestly  to  be  deprecated 
and  sedulously  avoided.  The  authorities  cited  show,  how- 
ever, in  what  light  the  law  regards  the  wilful  neglect  of  one 
intrusted  with  somewhat  of  a  public  duty.  It  is  a  criminal 
offence. 

I  do  not  doubt  that  such  a  course  on  the  part  of  a  rector, 
deliberately  persisted  in,  after  notice  of  a  meeting,  and  the 
subject  to  be  considered,  would  afford  ground  to  apply  to  the 
ecclesiastical  authority  for  its  consent  to  his  dismissal,  under 
the  Canon  of  the  General  Convention. 

Questions  have  also,  in  my  experience,  arisen,  as  to  the 
extent  of  the  duty  of  a  rector  to  put  questions  for  the  de- 
cision of  the  vestry.  There  can  be  no  doubt  of  his  obliga- 
tion to  do  this,  in  every  case  of  a  proposition  properly  within 
the  province  of  a  vestry  to  act  upon.     It  is,  on  the  other 

1  In  the  Parish  Hand-Book,  p.  27,  is  a  statement  that  the  rector  has  sole  power 
to  call  the  vestry  together,  to  preside  over  its  dehberations,  and  to  dissolve  it. 
Dr.  Hawks'  Constitution  and  Canons,  and  Hoffman's  Law  of  the  Church, 
are  referred  to  for  this  proposition.  Certainly  neither  of  the  passages  referred 
to,  warrant  the  statement-  In  one  particular,  the  statute  is  the  reverse.  A 
warden  may  call  a  meeting. 

2  Seethe  cases  cited,  Wilcox  on  Corporations,  §94  ;  Rex  r.  Gaborian,  11 
East,  87,  note  ;  Rex  v.  Church-wardens  of  St.  Mathews,  3  Barn.  &  Adol.  907  ; 
Rex  V.  Church-wardens  of  St.  Bartholomew,  2  Barn.  &  Adol.  506. 


The  Protestant  Episcopal  Church.  79 

side  clear,  that  he  is  not  houiul  to  put  questions  or  resolu- 
tions tending  to  censure  or  criminate  himself.  When  acts 
or  resolutions  are  proposed  hostile  to  the  rector,  as  under  the 
Canon  respecting  a  dissolution  of  the  connection,  or  where 
a  vestry  is  authorized  to  present,  the  body  acts  of  necessity 
as  warden  and  vestrymen,  not  as  the  strict  integral  body. 
(See  Hoffman's  "Law  of  the  Church,"  p.  323-5.)  There 
may  possibly  be  resolutions  of  neither  character,  as  to  which 
good  sense  and  mutual  forl)earance  must  be  the  guide. 

In  closing  this  important  branch  of  the  subject,  I  beg  to 
remark,  that  clergymen  too  often  forget  the  new  and  pe- 
culiar relation  in  which  they  place  themselves,  when  the 
church  they  belong  to  has  been  incorporated  under  the 
statutes  of  the  State.  Whenever  the  provisions  of  such 
statutes  expressly,  or  by  necessary  implication,  govern  his 
relations  with  a  vestry,  or  a  congregation,  or  otherwise,  they 
form  the  absolute  law  for  him. 

§  21.  "  Such  rector,  if  there  be  one,  and  if  not  then  the 
church-warden  present,  or  if  both  the  church-wardens  be 
present,  then  the  church-warden  who  shall  be  called  to  the 
chair  by  a  majority  of  voices,  shall  preside  at  every  such 
meeting  or  board,  and  have  the  casting  vote."  (Section  1 
of  Act  of  1813.) 

Here  again,  the  English  rule  is  observed.  The  rector, 
the  prcBses  ecclesiasticus,  has  the  right  to  preside.  A  warden 
only  presides  when  there  is  no  rector. 

I  have  entered  largely  under  the  preceding  section  (§  21), 
upon  the  subject  of  the  rights,  powers,  and  duties  of  a  rec- 
tor, in  connection  with  a  vestry,  and  its  convening  and 
acting. 

Casting  Vote.  The  clause  respecting  a  casting  vote  was 
examined  in  the  case  of  the  Church  of  the  Atonement,  in 
November,  1866. 

The  author's  opinion  was  asked  upon  the  following  case : 
There  being  no  rector,  the  senior  warden  was,  at  a  meet- 
ing of  the  vestry,  called  to  the  chair.  A  resolution  to  call 
the  Reverend  Mr.  R.  as  rector  was  offered.  The  two  ward- 
ens and  eight  vestrymen  were  present.     Five  voted  in  the 


80      Ecclesiastical  Law  in  the  State  of  New   York. 

affirmative.  Five,  the  presiding  warden  included,  voted  in 
the  negative.  That  officer  declared  the  resolution  lost.  It 
was  claimed  that  it  had  been  carried,  because  the  presiding 
officer  had  no  right  to  vote  at  all,  except  in  the  case  of  an 
equal  division  resulting  from  votes  not  including  his  own. 

The  author's  opinion  was,  that  by  the  true  construction 
of  the  statute,  a  warden,  by  presiding,  did  not  lose  his 
privilege  of  voting  as  a  member;  and  the  phrase  in  the 
statute  therefore  meant  a  casting  vote  in  the  sense  of  a 
double  vote.     Numerous  authorities  were  cited. 

As  the  case  went  to  the  Supreme  Court,  and  the  most 
of  the  authorities  were  referred  to  by  the  learned  judge, 
the  author's  opinion  is  not  further  stated. 

The  question  came  before  the  Supreme  Court  at  Special 
Term  (Judge  Gilbert),  in  Remington  v.  The  Rector,  etc.,  of 
the  Church  of  the  Atonement,  in  January  1867.  The 
learned  judge,  after  stating  the  facts,  and  citing  the  statu- 
tory provisions  as  to  the  election  of  church-wardens  and 
vestrymen,  their  becoming  trustees,  and  the  above-quoted 
section,  proceeded :  — 

The  question  then  is.  What  is  the  legal  signification  and 
effect  of  the  phrase,  "  and  have  the  casting  vote  ?"  Does 
the  calling  of  a  church-warden  to  the  chair  annul,  for  the 
time  being,  his  right  as  a  constituent  member  of  the  corpo- 
rate body,  or  absolve  him  from  the  execution  of  any  trust  or 
duty  devolved  upon  him  as  such  member  ?  No  authority  for 
such  a  proposition  was  cited,  except  the  learned  treatise  of 
Mr.  Cushing  on  Parliamentary  Practice.  This  author  does 
indeed,  in  his  commentary  on  the  Practice  of  Legislative  As- 
semblies, in  the  absence  of  express  regulations,  sustain  the 
portion  of  the  relator's  counsel.  But  he  shows  at  the  same 
time,  that  the  reasons  for  such  practice  are  peculiar  to  that 
kind  of  assembly.  In  the  English  House  of  Commons,  the 
Speaker  never  votes  but  when  there  is  an  equality  without 
his  casting  vote,  which  in  that  case  creates  a  majority ;  but 
the  Speaker  of  the  House  of  Lords  has  no  casting  vote. 
His  vote  is  counted  with  the  rest  of  the  House  ;  and  in  the 
case  of  an  equality,  the  noncontents  or  negative  voices,  have 


The  Protestant  Episcopal  Church.  81 

the  same  effect  and  operation  as  if,  in  fact,  they  were  a 
majority.     (1  Bl.  Com.  181,  n.) 

The  practice  in  the  Congress  of  the  United  States,  and  in 
the  Legishiture  of  this  State,  is  different.  Neither  the  Vice- 
President  of  the  United  States,  nor  the  Lieutenant-Governor 
of  this  State  as  presiding-  officer  of  the  Senate,  has  any  vote, 
unless  the  votes  be  equally  divided.  The  Speaker  of  the 
House  of  Representatives  of  the  United  States,  and  of  the 
Assembly  of  this  State,  each  have  a  vote.  The  rule  of 
the  common  law  applicable  to  corporations,  however,  is  uni- 
form and  well  settled,  and  it  is  applicable  to  religious  soci- 
eties incorporated  under  our  law.  They  do  not  belong  to 
the  class  of  ecclesiastical  corporations,  in  the  sense  of  the 
English  law,  but  are  civil  corporations,  governed  by  the 
ordinary  rules  of  the  common  law.  (Robertson  v.  Bullions, 
1 N.  Y.  Rep.  25.)  In  corporations  consisting  of  an  indefinite 
number,  a  major  part  of  those  who  are  existing  at  the  time 
is  competent  to  do  the  act.  But  when  the  body  is  definite 
(as  it  is  in  this  case),  there  must  be  a  major  part  of  the  whole 
number,  for  it  is  a  special  appointment.  (Rex  v.  Varlo,  Cowp. 
250 ;  Rex  v.  Bellinger,  4  T.  R.  810 ;  Kernan,  504 ;  6  Vin.  269 ; 
2  Kent's  Com.  293.)  This  rule  of  the  common  law  has  been 
expressly  declared  by  statute.  (2  R.  S.  555,  §  27 ;  Horton  v. 
Garrison,  23  Barb.  176.) 

As  a  majority  of  the  vestry  did  not  vote  in  favor  of  calling 
the  relator,  he  was  not,  therefore,  called  or  elected,  unless 
the  statute,  giving  the  chairman  a  casting  vote,  is  to  be  con- 
strued as  meaning  a  vote  only  in  case  of  a  tie  arising  upon 
the  votes  of  the  other  members. 

The  plain  reading  of  the  statute  does  not  admit  of  such  a 
construction.  It  first  vests  the  power  of  election  in  a  body 
of  which  the  chairman  is  a  constituent  member.  This  is 
a  grant  to  every  such  member  of  a  right  to  vote. 

It  then  contains  another  grant  of  power  to  tJie  presiding 
offixier,  virtute  officii,  in  the  words,  "  he  shall  have  the  casting 
vote."  What  is  the  legal  effect  of  the  latter  grant  ?  By 
the  common  law,  a  casting  vote  sometimes  signifies  the  sin- 
gle vote  of  a  person  who  never  votes  but  in  the  case  of  an 


82      Ecclesiastical  Laio  in  the  State  of  New  York. 

equality ;  sometimes  the  double  vote  of  a  person  who  first 
votes  with  the  rest,  and  then,  upon  an  equality,  creates  a 
majority  by  giving  a  second  vote.  (1  Bl.  Com.  181,  n. ;  Jac. 
Law  Die.  Parliament,  7.) 

I  think  that  in  the  statute  under  consideration,  the  term 
"casting  vote,"  is  used  in  the  latter  sense.  (1  Bl.  Com. 
478,  n.  ;  Cowp.  377.)  It  is  true  that  a  double  vote  is  not 
allowed  in  corporate  meetings  except  by  express  statute 
(Anon.  LofFt,  Rep.  315 ;  15  Vin.  214)  ;  but  that  it  ought  to 
be  allowed  where  the  statute  is  clear,  cannot  be  doubted. 
In  Rex  V.  Giniver,  6  T.  R.  732,  a  charter  had  been  granted 
creating  a  corporation,  and  giving  tlie  bailiffs  and  aldermen,  or 
a  major  part  of  them,  power  to  choose  a  senior  bailiff.  A  by- 
law was  passed,  giving  to  the  senior  bailiff  the  casting  voice, 
in  cases  where  in  the  election  of  bailiffs,  aldermen,  or  other 
officers,  the  voices  should  happen  to  be  equal.  The  Court 
held  the  by-law  void,  because  it  was  contrary  to  the  consti- 
tution of  the  charter ;  but  it  was  tacitly  conceded  that  if 
the  provision  of  the  by-law  had  been  incorporated  in  the 
charter,  the  senior  bailiff  would  have  had,  in  the  case  of  an 
equality  of  votes,  a  double  vote.  Lord  Kenyon,  Ch.  J.,  and 
Lawrence,  J.,  expressly  asserted  that  such  would  have  been 
the  effect  of  the  by-law  if  it  had  been  valid.  (See,  also.  Rex 
V.  Bumpstead,  2  B.  &  Ad.  699.) 

It  appears  from  the  evidence  that  the  chairman  voted  with 
his  colleagues,  and  that  the  votes  were  equal.  He  must  be 
deemed  also  to  have  given  the  casting  vote.  His  declara- 
tion that  the  vote  was  lost,  was  equivalent  to  that,  and  it 
would  not  be  strictly  correct  unless  it  should  be  so  regarded. 
But  if  the  foregoing  views  are  correct,  it  is  immaterial 
whether  he  declared  the  resolution  lost,  upon  the  fact  that 
the  votes  were  equal,  or  whether  he  gave  a  casting  vote. 
Upon  the  vote  actually  taken,  the  resolution  to  call  the 
relator  failed,  for  lack  of  a  majority  of  the  votes  of  all  the 
members  of  the  vestry  entitled  to  vote.  If  the  chairman 
voted  twice,  it  was  lost  by  reason  of  a  majority  voting 
against  it. 

It  follows,  therefore,  that  the  respondents  are  entitled  to 
judgment  with  costs. 


The  Protestant  Episcopal  Church.  83 

§  22.  The  general  statutory  powers  which  this  church 
possesses  in  common  with  other  reHgious  bodies,  incorpo- 
rated under  the  Act  of  1813,  and  its  amendments,  are 
stated  in  chap.  16,  post.  There  are,  however,  some  special 
rules  and  modifications,  growing  out  of  the  ecclesiastical 
system  of  the  church,  which  require  notice. 

§  23.  Eights  in  Property.  The  distinctions  between  the 
rights  of  the  rector  and  of  the  vestry  as  to  the  property 
of  the  corporation,  or  the  use  of  the  church  edifice  and 
appurtenances,  is  in  several  cases  difficult  to  be  drawn. 

The  title,  the  legal  fee,  and  the  right  to  occupy  the  prem- 
ises, is  generally  and  exclusively  in  the  trustees,  namely,  the 
vestry.  The  right  to  take  and  appropriate  all  the  rents  and 
profits  of  land  and  the  income  of  personal  estate,  is  in  the 
same  body. 

If,  however,  a  conveyance  or  a  bequest  has  been  made,  ap- 
propriating rents  or  income  to  the  support  of  a  rector  dis- 
tinctly and  exclusively,  he  has  the  right  to  them,  unless  by 
consent  he  has  qualified  such  right.  This  is  the  case  with 
the  property  given  to  St.  Andrew's  Church,  Richmond.  By 
a  conveyance,  the  rents  and  profits  of  certain  real  estate 
were  to  be  applied  to  the  use  and  support  of  the  rector  of 
the  church  for  the  time  being.  It  was  considered  that  a 
call  and  acceptance  vested  the  right  absolutely  in  the  rec- 
tor, but  the  opinion  was  also  given,  that  a  call  reserving  a 
certain  sum  out  of  such  rents,  for  the  support  of  services  at 
a  chapel,  duly  accepted  in  writing,  bound  a  new  rector.  It 
was  recommended  to  have  the  call,  with  its  condition  and 
acceptance,  recorded  on  the  minutes,  and  signed. 

A  call  generally  specifies  the  salary  to  be  paid ;  and  under 
the  8th  section  of  the  Act  of  1813,  it  is  paid  out  of  the  rev- 
enues of  the  church.  This,  as  before  shown,  does  not  pre- 
vent an  action  to  recover  the  amount.  But  the  rector  is,  in 
this  respect,  in  the  same  position  as  a  sexton  or  organist, 
engaged  for  a  fixed  compensation.  The  funds  of  the  church 
are  responsible,  and  the  vestry  liable,  to  the  same  extent  and 
no  further,  in  each  case.  There  cannot  be,  rightly,  any 
preference  in  payment,  should  there  arise  a  deficiency. 


84      Eccle^astical  Law  in  the  State  of  New   York. 

There  are  some  questions  connected  with  the  ownership 
and  use  of  the  church  edifice  and  particular  portions  of  it, 
of  moment,  and  not  clearly  defined. 

By  the  English  law,  the  title  to  the  church  edifice  is  ordi- 
narily vested  in  the  parson  or  rector.  Yet  the  possession 
and  control  is  in  the  minister  and  church- ward  ens.  "  All 
persons,"  says  Sir  John  Nicholls,  "  should  understand  that 
the  sacred  edifice  of  the  church  is  under  the  protection  of 
the  ecclesiastical  laws,  as  they  are  administered  in  these 
courts ;  that  the  possession  of  the  church  is  in  the  minister 
and  church-wardens ;  that  no  one  has  a  right  to  enter  it 
when  it  is  not  open  for  divine  service,  except  under  their 
permission  and  with  their  authority."  (Jarratt  v.  Steele,  3 
Phillimore's  Kep.  167.) 

Yet  a  private  right  of  property  may,  by  such  law,  exist  in 
an  individual,  in  a  portion  of  the  edifice,  such  as  an  aisle. 
Thus,  Bishop  Gibson  states,  that  an  aisle  which  has,  time 
out  of  mind,  belonged  to  a  particular  house,  and  been  re- 
paired by  its  owner,  is  part  of  his  frank  tenement,  and  the 
parson  or  ordinary  cannot  meddle  with  it.^  And  so  it  was 
held  in  Cowen  v.  Prym,  cited  by  Burns.^  But  this  right 
may  not  be  conferred  by  any  grant  from  an  ordinary.  It  is 
attached  to  the  ownership  of  a  house  by  presumption,  and 
it  may  be  assumed  that  it  does  not  exist  in  our  country. 

By  Canon  85  of  the  Canons  of  1603,  the  church-wardens 
or  questmen  shall  take  care  and  provide  that  the  churches 
be  well  and  sufficiently  repaired,  and  so  from  time  to  time 
kept  and  maintained  ;  that  the  windows  be  well  glazed,  and 
that  the  floors  be  kept  paved,  and  every  and  all  things  in 
an  orderly  and  decent  sort,  as  best  becometh  the  house  of 
God,  and  is  prescribed  in  a  homily  to  that  eff'ect.  The  like 
care  they  shall  take  that  the  church-yards  be  well  and  suf- 
ficiently repaired,  fenced,  and  maintained,  with  walls,  rails, 
or  pales,  as  have  been  in  such  places  accustomed,  at  their 
charges  unto  whom  by  law  the  same  appertaineth. 

In  general,  the  fences  and  iuclosures  are  kept  in  order  at 
the  expense  of  the  parishioners,  who  may  be  proceeded 
against  in  the  spiritual  courts  for  neglect  of  the  duty. 

1  Coikx,  p   197.  ^  Ecc.  Laws,  vol.  i.  p.  362. 


The  Protestmxt  Episcopal  Church.  85 

We  have  before  seen  that  the  title  to  the  property  of  the 
church  vests  in  the  corporate  body,  so  that  an  action  con- 
nected with  it  cannot  be  brought  in  the  name  of  the  trust- 
ees. But  they  are  expressly  empowered  to  repair  and  alter 
the  edifice,  etc.,  and  as  agents  and  representatives  of  such 
corporation,  the  possession  and  control,  maintaining  in 
proper  order,  direction  of  reparation,  etc.,  devolves  upon 
the  vestry  as  trustees.  Such  duties  as  the  English  Canon 
before  cited  impose  upon  the  wardens  or  questmen,  are  per- 
formed by  the  vestry,  through  persons  employed  by  them. 

In  relation  to  property,  and  the  more  extensive  term 
temporalities,  the  law,  when  a  church  has  accepted  an  act 
of  incorporation,  is  clear.  Every  ecclesiastical  rule  is 
superseded  by  the  statutory  rule,  where  one  is  expressed, 
and  there  is  any  inconsistency  in  the  provisions. 

There  is  no  inconsistency  when  the  minister  has,  for 
religious  or  ecclesiastical  purposes,  a  limited  and  particular 
possession  and  control. 

Dr.  Hawks  has  a  long  and  able  note  upon  this  subject. 
He  discusses  it  chiefly  in  connection  with  the  office  of  in- 
stitution, —  as  to  what  rights  the  instituted  rector  acquires, 
and  what  the  wardens  and  vestrymen,  the  qviosi  patrons, 
relinquish. 

(1.)  He  considers  that  the  rector  may  not  be  dismissed 
without  the  concurrence  of  the  ecclesiastical  authority 
under  Canon  33  of  1832. 

(2.)  That  he  has  exclusive  power  over  the  church  edifice 
as  to  granting  or  refusing  its  use  for  public  worship.  He 
deduced  this  from  the  nature  of  the  pastoral  charg-e,  the 
cure  of  souls,  and  the  absolute  necessity,  that  he  to  whom 
the  charge  of  watching  over  them  is  committed  should 
teach  himself,  or  select  those  who  may  teach  in  his  absence. 

The  Church  interdicts  other  clergymen  from  interfering 
with  his  charge.  No  clergyman  could,  under  Canon  31  of 
1832,  officiate  in  his  parish  without  his  express  consent.  A 
fortiori,  the  Church  will  not  allow  the  laity  to  interfere. 

(3.)  He  then  examines  the  question,  in  whom  resides  the 
power  of  directing  the  use  of  the  church  at  other  times  and 


86      Ecclesiastical  Law  in  the  State  of  New   York. 

for  other  purposes,  than  during  public  worship  on  appointed 
days.  He  argues  strongly  from  the  institution  office,  and 
the  delivery  of  the  keys  accompanying  it,  that  the  rector 
has,  in  these  cases  also,  exclusive  authority. 

It  seems  to  me  impossible  to  deny  the  force  of  this  rea- 
soning. But  it  may  be  added,  that  the  conclusion  is  almost 
equally  clear,  when  the  institution  office  has  not  been  used. 
The  deliveiy  of  the  keys  is  no  more  than  a  token  of  the 
reception,  by  the  parish  or  church,  of  the  party  as  its  priest 
and  rector ;  and  he  receives  the  keys  of  God's  house  as  a 
symbol  and  pledge  of  his  assumption  of  the  office  and  its 
duties. 

I  have  frequently  stated  the  opinion,  that  the  call,  ac- 
ceptance, and  entering  upon  the  duties  of  a  rector  (without 
any  special  restrictions  agreed  upon),  as  fully  establishes  the 
relation  between  a  rector  and  the  parish,  as  the  institution 
office  does.  The  learned  Justice  Emmott,  of  the  Supreme 
Court,  adopted  this  view.^ 

We  may,  I  think  with  confidence,  conclude,  that  whether 
the  institution  office  has  been  used  or  not,  the  right  to 
allow  any  other  clergyman  of  the  Church  to  officiate  in  the 
church  edifice,  belongs  exclusively  to  the  rector. 

This  is  English  law ;  this  is  general  Ecclesiastical  law. 
This  is  deducible  from  our  canons  and  offices  as  our  own 
Ecclesiastical  law.  This  is  not  inconsistent  with  the  stat- 
utes granting  incorporation  and  vesting  title  and  property 
in  the  vestry  as  trustees.  The  statutes  contemplate  tempo- 
ralities, and  their  management.  A  canon  provides  for  the 
case  of  there  being  no  rector. 

But  the  members  of  the  congregation  have  rights  in  the 
matter.  As  members  of  the  Protestant  Episcopal  Church, 
they  are  entitled  to  have  "  the  office  of  public  preaching, 
and  ministering  the  sacraments  in  the  congregation,  per- 
formed by  one  lawfully  called  and  sent  to  execute  the 
same ;  "  ^  with  the  exposition  of  what  is  such  a  call  con- 
tained in  our  standards.  They  have  a  right  to  demand  that 
a  minister  "  do  so  minister  the  doctrine,  sacraments,  and 

1  Youngs  V.  Ranson,  31  BarTjour,  19.  ^  Article  23. 


The  Protestant  Episcopal  Church.  87 

discipline  of  Christ,  as  the  Lord  hath  commanded,  and  as 
this  Church  luith  received  tlie  same,  according  to  the  com- 
mandments of  God."  1  The  vow  of  the  rector  becomes  the 
right  of  the  congregation.  These  rights  are  violated,  if 
any  one  is  allowed  to  officiate,  who  (I  take  strong  cases) 
should  teach  an  anti-Trinitarian  doctrine,^  or  the  Romish 
doctrine  concerning  purgatoiy,  pardons,  worshiping  and 
adoration  of  images  or  relics,  or  the  invocation  of  saints.^ 
We  may  add  (which  was  undeveloped  when  the  Articles  were 
framed),  the  dogma  of  the  Miraculous  Conception. 

But  what  is  the  redress  ? 

It  is  quite  clear  that  the  vestry  or  congregation  have  no 
right  to  select  any  one  without  the  rector's  assent.  And 
from  the  nature  of  the  right,  its  necessary  exclusive  char- 
acter, the  vestry  cannot  forcibly  interfere,  as  by  closing  the 
doors.  I  apprehend  this  is  one  of  the  cases  in  which  the 
application  for  a  dissolution  of  the  pastoral  connection  would 
be  proper ;  or  the  case  might  be  so  grievous  as  to  demand  a 
presentment.  It  is  part  of  the  English  law,  that  for  any 
irregularity  in  the  conducting  the  services,  the  church- 
wardens may  complain  to  the  ordinary.  (Burns'  Ecc.  Law, 
vol.  i.  p.  170 ;  Lord  Stowell,  1  Lee's  Rep.  129 ;  2  Haggard's 
Rep.  25.) 

Use  of  Sacred  Buildings.  But  there  is  not  an  unrestrict- 
ed liberty  in  rector,  or  vestry,  or  congregation,  to  use  the 
church  edifice  on  other  days  or  other  occasions  than  for 
worship.  By  the  consecration  office,  the  edifice  is  separated 
from  all  unhallowed,  ordinary,  and  common  uses,  and  (as  an 
interpretation  of  this  language)  is  "  dedicated  to  the  service 
of  the  Lord,  for  reading  His  holy  Word,  for  celebrating  His 
holy  sacraments,  for  offering  to  Him  the  sacrifices  of  prayer 
and  thanksgiving,  for  blessing  the  people  in  His  name,  and 
for  the  performance  of  all  other  holy  offices ;  "  the  suppli- 
cations which  follow  referring  to  baptism,  confirmation,  the 
holy  communion,  marriage,  the  hearing  and  preaching  of  the 
Word  in  the  church,  also  illustrate  the  question.  All  other 
lioly  offices  must  mean  all  offices  of  that  nature  prescribed  or 
1  The  Ordering  of  Priests.  2  Article  1.  »  Article  22. 


88      Ecclesiastical  Law  in  the  State  of  New   York, 

permitted  in  the  formularies,  as  catechizing,  the  burial 
service,  the  ordering  of  priests,  etc.  And  what  is  thus 
enumerated  defines  all  the  cases  that  are  permissible,  and 
excludes  everything  else. 

Thus  fairs,  commencements,  public  gatherings  for  chari- 
table, or  even  religious  purposes,  not  strictly  prescribed 
Church  purposes,  are  inevitably  and  clearly  forbidden.  An 
election  of  wardens  and  vestrymen  is,  in  a  general  sense, 
secular,  but  yet  is  purely  for  Church  purposes.  By  ac- 
cepting an  act  of  incorporation,  requiring  an  election  to  be 
held  in  the  church,  the  congregation  consent  to  such  a  use, 
and  the  object  partakes  of  an  ecclesiastical  character. 

It  deserves  notice,  that  while  by  the  English  law,  a  school- 
house  cannot  be  erected  0:1  ground  consecrated  for  a  burial- 
ground,  a  vestry-room  may  be,  at  least  when  no  bodies  have 
been  interred.     (See  post,  chap.  19,  §  8.) 

Music.  Some  points  may  be  considered  as  clear  upon  this 
subject.  The  selection  of  an  organist,  of  singers  or  mem- 
bers of  a  choir,  is  almost  universally  left  to  the  rector ;  and 
the  rubrical  direction  in  the  selections,  that  the  minister, 
with  such  assistance  as  he  can  obtain  from  persons  skilled 
in  music,  sliall  give  order  concerning  the  tunes  to  be  sung, 
indicates  this  to  be  the  views  of  the  Church,  to  some  extent 
at  least.  It  may  be  considered,  that  not  only  the  choice 
of  the  tunes,  but  of  the  music  generally,  is  left  with  the 
minister ;  but  the  negative,  at  least,  upon  the  selection  of 
the  singers,  etc.,  is  with  him. 

Yet  it  is  clear  that  as  to  salaiy,  terms  of  employment,  and 
numbers  to  be  employed,  the  vestry  collectively  possesses  the 
power.  Contracts  which  aflFect  the  revenues  or  property  of 
the  church,  can  only  be  made  by  that  body. 

In  a  case  within  the  writer's  knowledge,  where  the  sub- 
ject of  these  relative  rights  was  discussed  between  a  rector 
and  the  other  members  of  the  vestry,  an  adjustment  was 
made,  by  which  the  period  of  employment,  the  number  of 
persons  to  be  employed,  and  the  salaries,  were  determined 
at  a  vestry  meeting,  and  the  selection  of  persons  and 
other  regulations  was  left  to  the  rector.    This  is  the  actual, 


The  Protestaiit  Episcopal  Church.  89 

legal,  and  canonical  position ;  this,  certainly,  is  the  most 
expedient  and  ecclesiastical. 

The  Eng^lish  law  leaves  the  erection  of  an  organ,  and  the 
employment  of  organist  and  others,  to  the  incumbent,  at 
least,  with  the  consent  of  the  ordinary' ;  but  if  any  expense 
of  putting  it  up  or  maintaining  it  is  incurred,  there  must 
be  a  rate  levied  at  a  vestry  meeting  of  the  parishioners. 
The  control  of  the  organist  is  with  the  minister.  (Burns' 
Ecc.  Law,  vol.  i.  374,  a,  b.) 

Assistant  Minister.  Assistant  ministers  are  sometimes 
found  necessary  or  impoi'tant  in  parishes.  Not  unfre- 
quently,  they  are  needed  when  the  Mother  Church  has 
established  a  chapel  of  ease. 

They  answer  to  the  curates  of  the  English  law  in  general; 
in  particular  cases,  to  the  coadjutors.  The  latter  term  was 
not  limited  to  bishops,  but  extended  to  assistants  of  au 
incumbent,  in  case  of  insanity  or  infirmity.  The  bishop 
appointed  a  licensed  curate  to  perform  the  duties.^ 

The  principle  of  this  regulation  is  found  in  Sub.  3  of  §  vi. 
Canon  12,  of  the  Digest.  If  a  minister  neglect  from  inabil- 
ity, or  any  other  cause,  to  perform  the  regular  services,  the 
bishop  may  open  the  doors  to  any  regular  minister  of  this 
Church. 

The  curates  of  the  English  law  were  appointed  l)y  the  in- 
cumbent, unless  the  appointment  was  vested  in  others  by 
deed  or  prescription.  The  better  opinion  seems  to  be,  that 
a  curate  cannot  be  removed  except  for  cause  shown,  during 
the  term  of  his  employment.^ 

In  the  case  of  the  Church  of  St.  Esprit,  1864,  the  fol- 
lowing ^dew  was  presented. 

"  Assistant  ministers  have  been  known  in  our  Church  for 
a  long  period.  They  are  noticed  in  colonial  charters.  That 
to  Trinity  Church  authorized  the  vestry  to  appoint  an 
assistant  from  time  to  time." 

Upon  the  election  of  a  minister  nnto  a  church  or  parish, 
a  certificate  is  given,  the  form  of  which  is  prescribed  in 

1  Burns'  Ecc.  Law,  vol.  i.  p.  429. 
^  Ibid.,  vol.  ii.  p.  56,  et  seq. 


90      Ecclesiastical  Law  in  the  State  of  New   York. 

Canon  12,  part  1,  of  the  Digest :  "  We,  the  church-wardens 
(or  in  case  of  an  assistant  minister),  we,  the  rector  and  church- 
wardens, do  certify  that has  been  duly  chosen 

rector,  or,  assistant  minister,  etc."  The  second  section  of 
the  same  Canon  recognizes  such  a  minister.  And  the  in- 
stitution office  provides  for  the  institution  of  a  rector  or 
assistant  minister. 

"  After  a  careful  consideration  of  the  questions  submitted, 
I  am  of  opinion  — 

"That  the  decision  of  the  necessity  or  utility  of  an 
assistant  minister  to  perform  duties  in  the  parish,  rests  in 
the  vestry  collectively,  as  well  as  the  terms  and  period  of 
employment,  and  the  salary  or  compensation  to  be  allowed. 
*'  That  the  selection  of  the  person  cannot  be  made  without 
the  assent  of  the  rector.  This  seems  plainly  deducible  from 
the  able  argument  of  Dr.  Hawks,  before  referred  to.  The 
guidance  of  the  parish  in  spiritual  matters,  is  committed  to 
the  rector  by  his  call. 

"  And  I  am  inclined  to  think,  that  the  concurrence  of  a 
warden  and  a  majority  of  the  vestrymen,  in  vestry  assem- 
bled, is  necessary.  The  rector  would  thus  have  what  is 
equivalent  to  a  veto  in  the  selection,  and  the  vestry  a  con- 
senting voice.  I  regard  this  result  as  most  consonant  to 
true  ecclesiastical  principle,  and  most  consistent  with  our 
peculiar  laws  and  canons." 

While  the  statutes  of  incorporation  vest  powers  over  the 
temporalities  in  the  vestry,  as  trustees,  and  an  aggregate 
body,  there  are  several  points  in  which  ecclesiastical  rules 
and  principles  have  an  influence.  There  are  some  duties 
and  powers,  which  are  given  more  particularly  to  some 
members  of  this  body.  We  have  seen  that  there  are  some 
such  in  the  rector.  There  are  also  some  vested  in  the 
church-wardens. 

Church-ivarde7is.  It  will  be  useful  to  advert  briefly  to 
their  position  in  the  English  law. 

By  several  Canons  of  1603  (18,  19,  85,  90,  111),  the 
church-wardens  or  questmen  are  to  enforce  the  keeping  of 
good  order  during  public  service,  to  prevent  idle  persons  fre- 


The  Protestant  Episcopal  Church.  91 

quenting  the  church-yard  or  porch,  to  keep  peace  during" 
any  meeting  of  the  congregation.  In  the  visitations  of 
hishops  and  archdeacons,  they  were  to  present  the  names 
of  all  who  had  behaved  rudely  or  disorderly  in  the  church. 

Church-wardens  are  described  as  ancient  officers  annually 
chosen,  to  look  to  the  church,  church-yard,  and  things  that 
belong  to  both ;  to  provide  what  is  necessary  for  the  per- 
formance of  divine  service,  and  to  observe  the  behavior 
of  the  parishioners,  concerning  such  faults  as  belong  to 
the  ecclesiastical  jurisdiction. 

They  are  directed,  by  Canon  89  of  1603,  to  be  chosen  by 
the  joint  consent  of  the  minister  and  parishioners ;  but  if 
they  cannot  agree,  then  the  minister  chooses  one,  and  the 
parishioners  the  other. 

But  it  is  said,  that  of  common  right  every  parish  ought 
to  choose  its  own  church-wardens,  which  right  can  only  be 
overthrown  by  a  contrary  custom.  (Dawson  v.  Towle,  Hale, 
Ch.  Baron,  Hardress'  Rep.  378.J  Church-wardens  are  lay 
incorporations,  and  for  many  purposes  they  are  temporal 
ministers  and  officers,  as  appears  by  many  acts  of  Par- 
liament concerning  the  poor,  maimed  soldiers,  etc.  Of  com- 
mon right,  every  parish  ought  to  choose  its  own  church- 
wardens, but  a  custom  may  be  alleged. 

Lord  Stowell  (1  Lee's  Rep.  129)  thus  states  their  office 
and  duties  :  "  I  conceive  that  their  duties  were  originally 
confined  to  the  care  of  the  ecclesiastical  property  of  the 
parish,  over  which  they  exercised  a  discretionary  power  for 
certain  purposes.  In  all  other  respects,  it  is  an  office  of 
observation  and  complaint,  but  not  of  control,  with  respect 
to  divine  worship."  So  it  is  laid  down  by  Ayliffii  in  one 
of  the  best  dissertations  on  the  duties  of  church-wardens, 
and  in  tlie  Canons  of  1591.  In  these,  it  is  observed,  that 
the  church-wardens  are  appointed  to  provide  the  furniture 
of  the  church,  the  bread  and  wine  of  the  Holy  Sacrament, 
the  surplice,  and  the  books  necessary  for  the  performance 
of  divine  worship,  and  such  as  are  directed  by  law ;  but  it 
is  the  minister  who  has  the  use.  If,  indeed,  he  err  in  this 
respect,  it  is  just  matter  of  complaint,  which  the  church- 


92      Ecclesiastical  Law  in  the  State  of  New   York. 

wardens  are  bound  to  attend  to ;  but  the  law  would  not 
oblige  them  to  complain  if  they  had  a  power  themselves  to 
redress  the  abuse.  In  the  service,  the  church-wardens 
have  nothing  to  do  but  to  collect  the  alms  at  the  offertory ; 
and  they  may  refuse  the  admission  of  strange  preachers 
into  the  pulpit ;  for  this  purpose  they  are  authorized  by  the 
Canon  :  but  how^?  When  letters  of  orders  are  produced, 
their  authority  ceases.  Again,  if  the  minister  introduces 
any  irregularity  into  the  service,  they  have  no  authority  to 
interfere,  but  they  may  complain  to  the  ordinary  of  his 
conduct.  I  do  not  say  there  may  not  be  cases  where  they 
may  not  be  bound  to  interfere.  They  may  repress,  and  are 
bound  to  repress,  all  indecent  interrupting  of  the  service 
by  others.  They  have  the  custody  of  the  church  under 
the  minister ;  if  he  refuses  access  to  the  church  on  fitting 
occasions,  complaint  must  be  made  to  higher  authorities." 

In  Bennet  v.  Bonaher  (2  Haggard's  Rep.  25),  articles 
were  exhibited  by  a  church-warden  against  an  incumbent 
for  frequent  irregularities  in  the  performance  of  divine 
service,  and  neglect  of  parochial  duties. 

The  church-wardens  were  to  be  chosen  in  Easter-week, 
and  to  continue  in  office  until  their  successors  were  sworn. 

In  an  action  of  trespass  for  assault  and  battery,  against  a 
ehurch-warden,  the  plea  was,  that  the  plaintiff  had  his  hat 
on  during  divine  service ;  that  he  desired  him  to  take  it  off, 
and  on  his  refusal,  took  it  off  and  delivered  it  to  him.  The 
Court  held,  that  the  plea  was  good,  all  concurring,  except 
Tmsden,  J.     (Cited  Gibson's  Codex,  29  ;  2  Keble,  124.) 

In  the  late  case  of  Wall  v.  Lee  (36  N.  Y.  Rep.  14),  a 
person  behaving  rudely  in  a  Roman  Catholic  church,  the 
priest  officiating  took  measures  to  have  him  removed  ;  and 
it  was  held,  that  an  action  of  assault  would  not  lie.  He 
was  the  proper  person  to  keep  order,  having  charge  of  the 
church  under  the  bishop. 

Force  enough  could  be  used  to  remove  any  one  dis- 
turbing a  religious  meeting. 

Before  concluding  this  chapter,  I  would  call  attention 
to  the  repeated  efforts  made  in  our  Convention,  to  obtain 


The  Protestant  Episcopal  Church.  93 

a  change  in  the   statute  law  as  to   the   incorporation   of 
churches. 

In  the  year  1860,  a  committee  before  appointed  reported 
to  the  Convention  a  series  of  amendments.  They  were 
chieJBy  these :  — 

Requiring  that  not  less  than  ten  persons  belonging  to  the 
congregation  should  assemble  in  order  to  become  incorpo- 
rated. 

The  persons  entitled  to  vote  at  such  first  election  were 
declared  to  be  the  following:  — 

(1.)  "Those  who  have  been  baptized  in  the  Protestant 
Episcopal  Church  ;  or  who  shall  have  been  received  tlierein, 
either  by  the  rite  of  confirmation,  or  by  receiving  the  holy 
communion." 

(2.)  "  Those  who  have  purchased  or  hired  and  paid  for  a 
pew  or  seat  in  such  church,  or  shall  have  contributed  in 
money,  not  less  than  two  months  next  prior  to  such 
meeting,  to  the  support  of  such  church  or  the  minister 
thereof." 

Some  changes  in  detail  were  made  of  no  importance  to 
be  noticed  here. 

So  persons  entitled  to  vote  at  ensuing  elections  were 
those  qualified  for  the  first  election,  and  who  should  have 
belonged  to  such  church  or  congregation  for  twelve  months 
immediately  preceding  the  election.  To  the  clause  re- 
quiring the  presence  of  a  rector  for  the  transaction  of 
business,  if  there  be  one,  was  added,  — 

"  Provided,  however,  that  if  the  rector  be  absent  from  the 
State,  and  shall  have  been  so  absent  for  over  four  calendar 
months ;  or,  if  the  meeting  shall  have  been  called  by  the 
rector,  and  he  be  absent  therefrom,  the  board  shall  be 
competent  to  transact  all  business,  if  there  be  present  one 
church-warden  and  a  majority  of  the  laymen ;  except  that 
no  measure  shall  be  taken  for  efiFecting  a  sale  or  disposition 
of  the  real  property,  nor  may  any  sale  or  disposition  of  the 
capital  or  principal  of  the  personal  estate  of  such  corpora- 
tion be  made,  nor  any  act  done  which  shall  impair  the 
rights  of  such  rector." 


94     Ecclesiastical  Laiv  in  the  State  of  New  York. 

In  the  Convention  of  1862,  the  following  report  was 
made :  — 

The  Committee  heretofore  appointed  upon  the  subject  of 
amendments  to  the  Act  for  the  incorporation  of  churches, 
and  instructed  by  the  last  Convention  to  submit  the  amend- 
ments then  adopted  to  the  bishop  and  standing  committee 
of  the  Diocese  of  Western  New  York,  and,  when  concurred 
in  by  them,  to  take  measures  for  procuring  the  enactment 
of  the  same,  respectfully  report,  — 

That  a  communication,  with  a  copy  of  the  act  as  pro- 
posed, was  sent  to  the  Bishop  of  Western  New  York,  and 
by  him  submitted  to  the  standing  committee ;  that  com- 
mittee adopted  a  report  of  a  sub-committee  to  the  following 
effect :  — 

"  That  in  some  important  features  the  amendments  pro- 
posed would  be  prejudicial  to  the  interests  of  the  Diocese. 

"  In  clause  one  of  section  one,  it  is  proposed  that  not  less 
than  ten  male  persons  of  full  age  shall  at  any  time  be  com- 
petent to  meet  for  the  purpose  of  incorporating  themselves 
as  a  parish.  Such  a  provision  in  this  diocese  would,  in  the 
case  of  many  prosperous  missionary  stations,  if  it  hitherto 
had  been  in  force,  have  entirely  defeated  the  organization 
of  the  parish.  We  suggest  that  the  word  six  be  substituted 
for  ten. 

"  In  clause  five,  subdivision  three,  the  corporators  are 
required  to  elect  eight  vestrymen.  We  suggest  that  it  be 
altered  so  as  to  give  the  option  of  choosing  not  less  than 
four,  nor  more  than  eight ;  so  that  in  small  parishes,  where 
there  may  not  be  the  larger  number  of  suitable  men  to  act 
in  that  station,  the  smaller  may  be  adopted. 

"  The  tenth  clause  requires  a  notice  to  be  given  for  two 
Sundays  next  previous  to  the  day  fixed,  but  omits  stating 
the  time.  We  suggest  that  '  immediately  after  morning 
service,'  be  added,  as  is  done  in  the  second  clause  of  section 
first. 

"  In  the  ninth  clause,  where  it  is  required  that  eight 
vestrymen  shall  be  elected,  we  would  substitute  the  words, 
*  not  less  than  four,  nor  more  than  eight,'  so  as  to  be  in 


The  Protestant  Episcopal  Church.  95 

harmony  with  the  proposed  alteration  of  the  third  division 
of  the  fifth  clause. 

"  The  fifteenth  clause  allows  the  transaction  of  business, 
if  the  rector  and  one  warden  and  three  vestrymen  are 
present.  We  suggest  it  would  be  better  to  require  the 
presence  of  one  half  the  vestrymen  and  one  warden. 

"  We  advise  the  entire  omission  of  the  eleventh  clause, 
that  declares  the  board,  once  duly  organized,  competent  to 
transact  business,  although  members  may  have  withdrawn, 
leaving  perhaps  less  than  one  half  of  the  trustees  present. 
The  adoption  of  that  clause,  it  appears  to  your  committee, 
would  open  the  door  to  many  contingent  evils. 

"  With  these  alterations,  your  committee  advise  the 
concurrence  of  the  standing  committee  in  the  proposed 
amendments." 

The  alterations  thus  adopted  by  the  standing  committee 
of  Western  New  York,  precluded  the  committee  from 
taking  measures  to  procure  the  adoption  of  the  act  by  the 
legislature. 

An  act  was,  however,  introduced  into  the  Senate,  em- 
bodying these  alterations,  except  that  for  a  valid  meeting 
of  a  vestry,  a  majority  of  the  vestrymen,  instead  of  half,  as 
had  been  suggested,  was  required. 

The  proposed  act  had  also  a  further  provision,  to  the 
effect,  that  the  number  of  vestrymen  might,  at  any  time, 
be  increased  or  diminished,  so  however,  as  never  to  be  less 
than  four,  nor  more  than  eight,  by  a  vote  of  the  vestry,  if 
confirmed  by  a  vote  of  the  members  of  the  congregation 
qualified  to  vote  at  an  election  for  wardens  and  vestrymen  ; 
and  the  mode  of  procuring  and  recording  the  vote  of  both 
vestry  and  congregation  was  provided. 

It  is  understood  that  the  committee  of  the  Senate  to 
which  the  bill  was  referred,  adopted  the  act  as  thus  varied 
by  the  Western  Diocese,  except  in  one  important  particular. 
The  fifteenth  section  was  altered  so  as  to  read  thus :  "  No 
such  board  shall  be  competent  to  transact  any  business, 
unless  the  rector,  if  there  be  one,  or  one  of  the  church- 
wardens, and   not  less   than   a  majority  of  vestrymen  be 


96     Ecclesiastical  Laiv  in  the  State  of  New  York. 

present."  The  present  act  is  :  "  Unless  the  rector,  if  there 
be  one,  and  at  least  one  of  the  church-wardens,  and  a 
majority  of  vestrymen  he  present." 

It  is  understood  that  a  distinguished  member  of  the 
Senate,  and  a  member  of  this  Convention,  had  prepared 
amendments  to  the  bill  as  reported,  which,  while  restoring 
the  language  of  the  present  act  in  the  clause  above  quoted, 
enabled  a  vestry  to  transact  any  business  in  the  absence  of 
the  rector,  after  due  notice  to  attend  for  some  consecutive 
meetings.  These  views,  it  is  also  understood,  did  not  meet 
the  approval  of  the  Bishop  of  Western  New  York,  who,  at 
the  request  of  the  standing  committee,  represented  their 
views.  The  matter  ended  with  the  report  not  being  acted 
upon. 

It  will  be  seen  from  this  statement  that  a  material  dif- 
ference (perhaps  the  only  material  one)  between  the  act 
adopted  by  this  Convention  and  that  approved  by  the 
standing  committee  of  Western  New  York,  relates  to  the 
number  of  vestrymen,  which,  by  the  plan  of  the  latter, 
may  be  eight  or  not  less  than  four,  with  the  power  in  the 
congregation,  however,  to  increase  or  diminish  the  number 
chosen.  It  will  be  recollected,  that  in  the  proposed 
amended  act  adopted  by  the  Convention  of  1859,  there  was 
the  same  provision  as  to  the  number  of  vestrymen,  without 
any  clause  as  to  the  congregation  changing  the  number. 
That  provision  seems  not  very  important,  as  the  number 
could,  under  the  clauses  as  originally  shaped  by  this  Con- 
vention, be  varied  by  the  congregation  at  any  annual 
election.  In  1861  this  Convention  revised  the  act  they  had 
before  approved,  and  strong  objections  were  made  to  this 
provision.  The  committee,  to  which  that  Convention  re- 
ferred the  subject,  restored  the  number  eight,  as  now 
required  by  law,  and  the  Convention  of  1862  approved  and 
adopted  it. 

As  to  the  other  very  important  matter  of  the  action  of  a 
vestry  in  the  rector's  absence,  it  is  quite  clear  that  the 
change,  suggested  in  the  report  of  the  committee  of  the 
Senate,  has  never  met  any  approval  of  the  Convention.    But 


Tha  Protestant  Episcopal  Church.  97 

the  provisions  sug-gested,  where  the  rector  is  persistently 
absent,  were  reported  upon  favorably  by  the  committee 
which  submitted  the  act  to  the  Convention  of  1860. 

That  committee  reported  a  clause,  that  if  the  rector 
should  have  neglected  to  attend  two  vestry  meetings,  noti- 
fied to  be  held  at  an  interval  of  ten  days,  and  shall  be  absent 
at  a  third  meeting*  held  within  three  months  after  such 
neglect,  and  after  ten  days'  notice  of  the  same,  served  per- 
sonally upon  him,  the  service  so  made  and  certified  by 
the  clerk,  then  such  board  might  transact  any  business, 
one  warden  and  a  majority  of  the  vestrymen  being  present. 
The  Convention,  however,  did  not  approve  of  this  portion 
of  the  report,  and  adopted  a  provision  almost  identical  with 
that  sanctioned  by  the  Convention  of  1862,  as  to  the  cir- 
cumstances under  which,  and  the  extent  to  which,  the 
vestry  might  act  in  the  rector's  absence. 

In  the  Convention  of  1864,  some  further,  but  no  definite 
action  was  taken,  and  the  committee  was  continued. 

In  1865,  and  again  in  1866,  the  committee  was  continued 
with  the  powers  conferred  in  1863  and  1864. 

In  the  course  of  this  proceeding,  the  present  writer  had 
communications  with  the  late  Bishop  Delancy,  and  a  per- 
sonal interview  with  him,  in  which  he  expressed  himself 
strongly  against  the  policy  of  any  attempt  to  get  a  change 
in  the  law,  and  that  the  Church  had  better  endure  its  ex- 
isting defects  or  inconveniences.  He  had  spent  some  time 
in  Albany,  engaged  in  the  passage  of  an  act  for  the  Parochial 
Trust  Fund,  and  watched  the  movements  as  to  the  amend- 
ments of  the  incorporating  act.  His  opinion  was  decided 
that  we  ran  a  great  risk  of  changes  being  introduced,  rad- 
ically affecting  the  ecclesiastical  character  and  polity  of  the 
Church,  or  leading  to  an  abandonment  of  the  advantages 
of  an  incorporation. 1 

1  An  act  is  now  (March,  1868,)  before  the  Legislature  upon  this  subject, 
whieli,  if  passed,  I  shall  be  able,  I  presume,  to  place  in  a  note. 

7 


CHAPTER  V. 

THE    DUTCH    CHURCH. 

§  1.  Historical.  The  reformed  religion  was  established 
in  Holland  in  the  year  1583.  The  Prince  of  Orange,  on 
assuming  the  office  of  Stadtholder,  proclaimed  "that  he 
would  maintain  and  promote  the  reformed  religion,  and  no 
other ;  hut  that  he  would  not  suffer  any  man  to  be  called  to 
account,  molested  or  injured  for  his  faith  and  conscience." 
The  public  exercise  of  the  Roman  religion  was  prohibited. 

The  marked  principles  of  doctrine  and  discipline,  which 
were  declared  and  triumphed  at  the  Synod  of  Doi-t,  were 
borne  across  the  seas  by  the  children  of  Holland,  and  pre- 
vailed in  every  colony  which  their  bold  and  persevering 
spirit  planted. 

The  authority  of  the  Established  Church  of  Holland  was 
recognized,  and  the  care  of  the  transatlantic  churches  was 
committed  to  the  Classis  of  Amsterdam.  By  that  body  the 
colonial  clergy  were  approved  and  commissioned.^ 

The  earliest  trace  I  have  found  of  care  for  the  minis- 
trations of  religion,  is  in  the  year  1626,  when,  under  the 
Director  Minuit,  two  "  consolers  of  the  sick  "  were  named, 
whose  duty  it  was  also  to  read  to  the  people,  on  Sundays, 
some  texts  out  of  the  Scriptures,  together  with  the  Creeds. 
The  first  Dutch  minister  in  the  city  is  generally  supposed 
to  have  been  Everadus  Bogardus,  in  the  year  1633,  the 
husband  of  Anetjie  Jans,  whose  memory  lives  in  our  law- 
books to  tliis  day,  from  the  efforts  of  some  professing  to 
claim  under  her,  to  assail  the  title  of  Trinity  Church. 

But  in  the  second  volume  of  "  Holland  Documents,"  is  a 
very  interesting  letter  dated  the  11th  of  August,  1628,  at  the 

1  Broadhead's  Higtunj,  vol.  i.  p.  614. 


The  Dutch  Church.  99 

island  of  Manhattan,  New  Netherlands,  written  by  Jonas 
Michaelins,  from  which  it  appears  that  he  was  the  first 
minister  in  this  city. 

The  letter  was  found  at  the  Hague  in  1858,  and  a  copy 
was  sent  to  this  country  by  Mr.  Murphey.  He  considers 
the  evidence  of  its  authenticity  to  be  ample.  In  this  letter 
the  writer  speaks  of  having  established  the  form  of  a 
church,  *•■  and  as  Brother  Sebastian  Crol  very  seldom  comes 
down  from  Fort  Orange,  because  of  his  directorship  of  the 
fort  and  trade  there,  it  had  been  thought  best  to  choose 
two  elders  for  my  assistance,  and  for  the  proper  consider- 
ation of  all  such  matters  as  might  occur." 

He  also  observes,  "  that  although  our  small  consistory  at 
the  most,  when  Brother  Crol  is  down  here,  has  not  more 
than  four  persons,  all  of  whom,  myself  excepted,  have  pub- 
lic business  to  attend  to,  yet  I  hope  to  separate  the  ecclesi- 
astical from  the  civil  matters,  so  that  each  one  will  be 
occupied  with  his  own  matters." 

The  letter  is  very  interesting.  The  passage  as  to  the 
Indians  is  eloquent  with  rehgious  earnestness.  I  do  not 
know  that  any  of  the  learned  of  the  Dutch  Church  have 
followed  up  the  traces  afforded  by  this  letter.  Who  was 
Brother  Crol,  and  who  were  the  two  others  that  formed  the 
single  consistory  of  the  colony  in  1628  ? 

The  system  in  respect  to  the  settlement  of  ministers  is 
shown  in  the  case  of  the  Reverend  Dr.  Megalopensis.  He 
was  invited  by  the  patroon  of  Renssaerlerwick  to  become 
their  pastor.  As  the  Classis  of  Amsterdam  was  the  eccle- 
siastical superior  of  all  the  Dutch  colonial  clergy,  it  was 
necessary  to  obtain  its  assent  to  the  arrangement.  He 
appeared  before  the  committee  ad  res  externas  of  that  Classis, 
and  a  formal  call  was  attested  by  the  Classis.  The  Am- 
sterdam Chamber  claimed  the  right  of  approving  this  in- 
strument. The  patroon  asserted  a  power  in  the  matter. 
After  some  difficulties  and  reservations  of  rights,  the 
appointment  was  made. 

By  one  of  the  articles  of  the  Freedoms  and  Exemptions, 
granted  by  the  Directors  of  the  West  India  Company,  with 


100    Ecclesiastical  Law  in  the  State  of  Neio   York. 

the  sanction  of  the  States- General,  the  19tli  of  July,  1640, 
"  no  other  religion  shall  be  publicly  admitted  in  the 
New  Netherlands  except  the  Reformed,  as  it  is  at  present 
preached  and  practised  by  public  authority  in  the  United 
Netherlands;  and  for  this  purpose  the  Company  shall  pro- 
vide and  maintain  good  and  suitable  preachers,  school- 
masters, and  comforters  of  the  sick."  ^ 

By  the  seventh  of  the  conditions  offered  by  the  city  of 
Amsterdam  to  emigrants,  approved  by  the  Directors  of  the 
West  India  Company  the  12th  July,  1656,  "the  city  was 
to  cause  to  be  erected  about  the  market,  or  some  other 
convenient  place,  a  public  building  suitable  for  divine  ser- 
vice ;  also  a  house  for  a  school ;  and  shall  have  a  house  built 
for  a  minister." 

"  The  city  shall  provisionally  provide  and  pay  the  salary 
of  a  minister  and  school-master,  unless  their  High  Mighti- 
nesses or  the  Company  shall  direct  otherwise."  ^ 

The  national  religion,  thus  established,  found  an  uncom- 
promising defender  in  Governor  Stuyvesant.  Strong,  de- 
cided, and  inflexible  in  his  character,  with  great  energy  and 
vigorous  sense,  his  antipathy  to  New  Englanders,  to  the 
populace,  and  to  Dissenters,  was  vehement,  and  was  not 
allowed  to  sleep.  In  1656  he  issued  a  proclamation  for- 
bidding preachers,  not  having  been  called  thereto  by  eccle- 
siastical or  temporal  authority,  from  holding-  conventicles 
not  in  harmony  with  the  established  religion  as  set  forth 
by  the  Synod  of  Dort,  and  here  in  this  land,  and  in  the 
Fatherland,  and  in  other  reformed  churches,  observed  and 
follovA^ed.  "  A  penalty  was  imposed  upon  every  unlicensed 
preacher  for  violating  the  ordinance,  and  upon  any  one  who 
should  attend."  ^ 

Again,  as  respects  the  Lutherans,  they  were  refused  per- 
mission to  worship  in  a  church  of  their  own.  The  Lutheran 
congregation  at  Amsterdam  sent  out  a  minister  to  organize 
a  church.  The  Classis  wrote,  that  the  Company's  intention 
was  to  permit  every  one  to  have  freedom  within  his  own 

1  Documents  of  Colonial  History.     Holland  Documents,  vol.  i.  p.  123. 

2  Ihld.,  p.  620.  ^  Ibid.,  p.  617. 


The  Didch   Church.  101 

dwelling-,  to  serve  God  in  such  a  manner  as  his  religion 
requires,  but  without  authorizing  any  public  meetings  or 
conventicles.^ 

It  is  somewhat  surprising  that  the  spirit  of  intolerance 
was  developed  with  greater  severity  against  the  Quakers, 
both  in  Massachusetts  and  the  New  Netherlands,  than 
against  any  other  class. 

The  punishment  of  Hodgson  for  preaching  at  Hemp- 
stead, has  not  often  been  exceeded  for  severity  or  circum- 
stances of  ignominy.  The  history  of  the  struggle  at 
Flushing  in  favor  of  Townsend,  who  had  held  meetings  of 
Quakers  at  his  house,  is  creditable  to  the  spirit  and  sense 
of  the  inhabitants  of  that  town.  Tobias  Feake,  the  schout, 
was  degraded  from  his  office,  and  sentenced. to  pay  a  heavy 
fine  or  be  banished,  for  framing  a  strong  and  well-written 
protest  against  the  proceedings  of  the  Governor. 

Again  in  1663,  a  severe  persecution  was  had  against 
John  Bowue,  also  of  Flushing,  w4io  had  attended  the 
meetings  in  the  woods,  and  finally  joined  the  Society.  He 
was  imprisoned,  fined,  and  proving  contumacious,  banished 
and  shipped  to  Amsterdam. 

The  authorities  there  disapproved  of  the  proceedings  of 
the  Governor,  and  rebuked  him  for  them.  In  a  paper 
marked  with  wisdom  and  policy,  they  tell  him :  "  That 
though  it  is  our  anxious  desire,  that  similar  and  other  sec- 
taries might  not  be  found  among  you,  yet  we  doubt  ex- 
tremely the  policy  of  adopting  vigorous  measures  against 
them.  The  consciences  of  men  ought  to  be  free  so  long  as 
they  continue  moderate  and  peaceable.  Such  have  been  the 
maxims  of  prudence  and  toleration  by  which  the  magis- 
trates of  this  city  (Amsterdam)  have  been  governed ;  and 
the  consequences  have  been  that  the  oppressed  and  perse- 
cuted from  every  country  have  found  among  us  an  asylum 
in  distress.  Follow  in  the  same  steps,  and  you  will  be 
blessed." 

The  letter  of  instructions  to  Andreas  Druyer,  com- 
mander and  schout,  of  the  26th  of  December,  1673,  after 

1  Documents  of  Colonial  History.     Holland  Documents,  vol.  i.  p.  634. 


102    Ecclesiastical  Law  in  the  State  of  Neiv   Yorh. 

the  reconquest,  directs,  "  that  the  pure,  true,  Christian  re- 
ligion, according  to  the  Synod  of  Dort,  shoukl  he  taught 
and  maintained  in  all  things  as  it  ought,  without  suffering 
the  slightest  attempt  to  be  made  against  it  by  any  other 
sectaries.' 

By  the  8th  Article  of  the  Surrender  to  the  English  in 
1664,  the  Dutch  were  to  enjoy  the  liberty  of  their  con- 
sciences in  divine  worship  and  church  discipline.  (Smith's 
"  New  York,"  p.  20.) 

It  has  been  questioned  whether  this  Article  was  not  eon- 
fined  personally  to  the  then  inhabitants  ;  and  it  was  urged 
that  at  any  rate  it  was  annulled  when  the  province  was 
restored  to  the  English  upon  the  peace  of  1674,  without 
any  condition.^. 

It  is  stated  by  Lieutenant  Governor  Colden,  in  a  letter  of 
the  7th  of  December,  1763,  that  four  charters  had  been 
granted  by  the  Governors  to  churches,  besides  those  of  the 
Church  of  England ;  all  to  Dutch  churches.  That  there 
had  been  a  strenuous  effort  made  in  1759,  to  procure  a 
charter  for  the  Lutheran  Church,  which  had  been  renewed 
in  1763,  and  was  submitted  to  the  Lords  of  Trade  for 
decision.  The  Reformed  Dutch  churches  united  in  the 
attempt.^ 

One  of  the  four  charters  mentioned  to  have  been  granted 
to  Dutch  churches,  was  that  to  the  minister,  elders,  and 
deacons  of  the  Reformed  Protestant  Dutch  Church  of  the 
city  of  New  York,  by  Governor  Fletcher,  on  the  11th  of 
March,  1696,  the  third  year  of  William.  Another  was 
granted  to  the  church  in  Albany  on  the  10th  of  August, 
1720,  as  appears  by  an  Act  of  February  2,  1798,  reciting 
it.  From  an  Act  of  the  29th  of  April,  1786  (1  Greenleaf, 
275),  I  am  led  to  suppose  that  a  third  was  to  the  Dutch 
Church  at  Flatbush.     I  am  not  able  to  trace  the  fourth. 

§  2.  Charier  of  1696.  The  charter  of  1696  to  the  church 
in  New  York  is  of  interest,  if  viewed  only  as  an  historical 

1  Documents  of  Colonial  History.  Holland  Documents,  vol.  ii.  p.  618;  Ibid.^ 
692  ;  under  (^olve,  Governor. 

•^  Letter  of  Governor  Golden,  Documents,  vol.  vii.  p.  586.  ^  Ibid. 


The  Dutch  Church.  103 

document.  But  as  the  basis  and  muniment  of  the  Dutch 
Church  in  many  particulars,  it  is  of  much  importance. 

It  recited  that  the  minister,  elders,  and  deacons,  and 
other  members  in  communion  of  the  said  Dutch  Protestant 
congregation,  in  our  said  city  of  New  York,  have  built  a 
church,  with  a  cemetery,  etc.,  in  Garden  Street,  of  said 
city,  and  are  seised  in  fee  of  a  certain  messuage,  etc.,  and 
also  of  the  Manor  of  Fordham.  It  set  forth  a  petition  that 
they  might  be  incorporated,  and  made  capable  of  holding 
and  enjoying  such  property  by  incorporation  of  the  mem- 
bers of  the  said  Dutch  Protestant  congregation,  in  our  city 
of  New  York,  by  the  name  of  "  The  Minister,  Elders,  and 
Deacons  of  the  Reformed  Protestant  Dutch  Church,  of  our 
city  of  New  York." 

"  Being  willing,  in  favor  of  the  pious  purposes  of  our 
loving  subjects,  to  secure  to  them  and  their  successors  the 
liberty  of  worshiping  God  according  to  the  constitutions 
and  directions  of  the  Reformed  Churches  in  Holland,  ap- 
proved and  instituted  by  the  National  Synod  of  Dort. 

"We  ordain,  etc.,  that  no  person  within  our  said  city 
of  New  York,  in  communion  of  the  said  Reformed  Dutch 
Church,  be  molested  or  called  in  question  for  any  difference 
in  opinion  in  matters  of  the  Protestant  religion,  who  does 
not  actually  disturb  the  civil  peace  of  our  province." 

It  is  then  stated  that  the  Reverend  Hendricus  Selyns 
was  the  then  minister  of  such  church,  and  others  named 
were  the  elders  and  deacons.  It  then  provided  that  the 
said  Hendricus  Selyns,  Nicholas  Bayard  (and  others  named) 
the  present  minister,  elders,  and  deacons,  and  all  such 
others  as  now  are  or  hereafter  shall  be  admitted  into  the 
communion  of  the  said  Reformed  Dutch  Church,  in  our  city 
of  New  York,  shall  be  from  time  to  time,  and  at  all  times,  a 
body  corporate  and  politic  in  fact  and  in  name,  by  the  name 
of  "  The  Minister,  Elders,  and  Deacons  of  the  Reformed 
Protestant  Dutch  Church  of  the  city  of  New  York."  By 
the  same  name  they  were  to  have  perpetual  succession,  etc. 

They  were  authorized  to  have,  take,  acquire,  possess,  and 
purchase   lands,  tenements,  and  hereditaments,   or   goods 


104    Ecclesiastical  Latv  in  the  State  of  Neio   York. 

and  chattels,  and  the  same  to  lease,  grant,  alien,  sell  and 
dispose  of  at  their  own  will  and  pleasure,  as  other  our  liege 
people,  or  any  corporation  or  body  politic  within  our  realm 
of  England  or  this  our  province,  may  lawfully  do. 

The  liabemlum  is  :  "  Unto  them  the  said  minister,  elders, 
and  deacons  of  the  Reformed  Protestant  Dutch  Church,  of 
the  city  of  New  York,  and  their  successors.  In  trust  to  the 
sole  and  only  use  and  benefit,  and  behoof  of  them,  the  min- 
ister, elders,  and  deacons,  and  other  members  in  communion 
of  the  said  Reformed  Protestant  Dutch  Church,  in  the  city 
of  New  York,  and  their  successors  forever. 

"  And  for  the  better  ordering  and  managing  the  affairs  of 
the  said  corporation  and  successors,  there  shall  be  four 
elders  and  four  deacons  from  time  to  time  constituted, 
elected,  and  chosen  out  of  the  members  of  the  said  Dutch 
Church,  inhabitants  in  our  said  city  of  New  York,  for  the 
time,  in  such  manner  and  form  as  is  hereinafter  expressed; 
which  persons,  together  with  the  minister  for  the  time 
being,  shall  apply  to  take  care  for  the  best  disposing 
and  ordering  the  general  business  and  affairs  of  and  con- 
cerning the  lands  and  hereditaments  herein  mentioned  to 
be  granted." 

The  elders  and  deacons  named  in  the  act  were  to  con- 
tinue in  their  offices  until  the  second  Sunday  of  November 
next  ensuing. 

Power  was  given  to  the  minister  for  the  time  being,  or 
in  his  absence  by  sickness  or  otherwise,  to  the  first  elder 
for  the  time  being,  to  give  order  for  the  assembling  of 
the  elders  and  deacons,  to  consult  on  the  business  of  the 
church. 

Yearly  and  every  year  on  the  third  Tuesday  of  October, 
at  the  said  church,  the  elders  and  deacons  of  the  said 
church,  with  the  approbation  and  consent  of  the  members 
of  the  said  church  for  the  time  being,  shall  nominate  and 
appoint  such  of  their  members  of  the  said  church  that 
shall  succeed  in  the  office  of  elders  and  deacons  for  the  year 
ensuing. 

Provision  was  made  for  filling  vacancies.     The  presenta- 


The  Dutch  Church.  105 

tiou,  patronag-e,  advowson,  after  the  decease  of  the  said  first 
minister,  was  vested  in  the  eklers  and  deacons  of  the  said 
Reformed  Protestant  Dutch  Church,  and  their  successors 
forever,  provided  they  bore  due  alleg-iance  to  the  crown. 

Power  was  also  given  to  the  minister,  with  the  consent 
of  the  ekh^rs  and  deacons,  or  any  four  of  them,  as  need 
shall  require,  to  nominate  one  or  more  able  ministers,  law- 
fully ordained  according-  to  the  constitutions  of  the  church 
aforesaid,  to  be  preachers  and  assistants  to  the  said  min- 
ister and  his  successors,  to  aid  in  divine  offices.  Likewise 
to  appoint  a  clerk,  school-master,  bell-ringer,  a  sexton,  and 
such  other  officers  as  they  stand  in  need  of.  Power  was 
also  g-iven  to  the  minister,  elders,  and  deacons,  with  the 
consent  of  the  members  in  communion  of  the  said  church, 
or  the  major  part  of  them,  to  make  rates  or  assessments 
upon  all  and  every  the  members  in  communion  of  the  said 
church,  for  the  raising  moneys  for  the  yearly  stipends  and 
salaries  of  the  aforesaid  officers  of  the  said  church,  and  for 
repairing  the  church,  church-yard,  and  other  things  neces- 
sary, belonging'  to  the  said  church. 

Otlier  provisions  are  made  for  carrying-  this  power  of 
rating"  property  into  effect. 

By  another  clause,  authority  is  given  to  the  ministers, 
elders,  and  deacons,  together  with  the  members  in  com- 
munion of  the  said  church,  inhabitants,  from  time  to  time 
inhabiting  and  to  inhabit  in  our  said  city  of  New  York,  that 
they  or  the  greater  part  of  them,  (whereof  the  minister, 
elders,  and  deacons,  and  the  major  part  of  the  members  in 
communion  of  the  said  church  shall  be  part),  shall  have 
power  to  choose,  nominate,  and  appoint  so  many  of  our  liege 
people  as  they  shall  see  fit,  and  shall  be  willing  to  accept 
the  same,  to  be  members  of  the  said  church  and  corpora- 
tion and  body  politic. 

Power  is  also  given  to  make  and  ordain  rules  and  ordi- 
nances for  the  good  discipline  and  weal  of  the  members  of 
the  said  church  and  corporation,  not  repugnant  to  the  laws 
of  England  or  the  constitutions  and  decrees  of  the  Synod 
of  Dort. 


106    Ecclesiastieal  Law  in  the  State  of  New   York, 

Tlie  Earl  of  Bellemont  accused  Governor  Fletcher  of 
having  received  a  bribe  for  granting  this  charter.  His 
statement  is,  that  he  applied  to  the  Rev.  Mr.  Selyns  for  an 
inspection  of  the  minutes  of  the  church  to  prove  this ;  that 
it  was  refused  until  the  sanction  of  the  consistory  was 
given  ;  that  it  was  finally  obtained,  and  he  transmits  a 
copy.^  The  copy  is  not  among  the  documents  printed. 
But  it  seems  satisfactorily  clear  that  it  did  not  make  out 
the  charge,  for  a  short  time  after  the  Earl  of  Bellemont 
transmitted  a  long  list  of  charges  against  Fletcher  for  mal- 
conduct,  and  this  is  not  one  of  theni.^ 

There  is  also  a  strong  tribute  to  Fletcher  from  the 
church-wardens  and  vestry  of  Trinity  Church,  as  being  the 
principal  promoter  of  the  English  Church,  and  speaking  of 
the  irreconcilable  aversion  Lord  Bellemont  had  to  him.^ 

The  Lords  of  Trade  heard  Fletcher  upon  the  charges, 
and  found  him  guilty  upon  some,  particularly  of  encour- 
aging piracy. 

Whatever  may  have  been  the  offenses  of  which  Colonel 
Fletcher  was  guilty,  yet  in  this  transaction,  the  church 
stands,  upon  the  evidence,  absolved  from  any  complicity, 
and  the  charter  as  unstained  in  its  origin  as  it  is  perfect 
in  law. 

We  find  by  this  charter  that  the  church  in  Garden  Street 
had  been  erected.  The  history  of  these  church  edifices  is 
thus  stated  :  "  The  first  place  of  worship  was  a  loft  over  a 
mill  erected  in  1626,  on  the  arrival  of  Dominie  Jonas  Michae- 
lius.  In  1633,  a  barn-like  structure  was  put  up  in  Broad 
Street,  between  Bridge  and  Pearl.  In  1642,  Kieft  erected  a 
new  church  within  the  fort,  contrary  to  the  wishes  of  the 
people.  This  was  of  stone,  seventy-five  feet  long  by  fifty 
wide.*  This  continued  until  1741.  The  church  in  Garden 
Street  was  built  about  1694,  the  Middle  Dutch  Church  in 
1729,  and  the  North  Church  in  1769." 

In  common  with  others,  the  Dutch  ecclesiastical  author- 

1  Colonial  Documents,  vol.  iv,  pp.  426-27.       2  //„•(/.  p.  433.         »  Ibid.  p.  526. 
*  See  Father  Jaqiies'  Novum  Belgium  (New  York,  1862),  p.  25  and  note,  p. 
10  ;  Broadhead,  vol.  i.  pp.  243,  336. 


The  Dutch   Church.  107 

ities  had  a  controversy  with  Lord  Corn  bury  (1704).  Con- 
trary to  the  express  terms  of  the  charter  of  1696,  that 
the  minister,  with  the  consent  of  the  elders  and  deacons, 
shoiihl  nominate  and  appoint  the  school-masters,  he  at- 
tempted to  forbid  their  exercising"  their  office  without  his 
license.     The  attempt  was  defeated.^ 

§  3.  Will  of  Harpemling.  To  understand  an  important 
point  in  the  legal  position  of  the  Dutch  Church  in  colonial 
days,  as  well  as  now,  the  will  of  John  Harpending  must  be 
noticed. 

It  was  dated  in  May,  1723,  and  by  it  he  devised  and 
bequeathed  to  the  ministers,  elders,  and  deacons  of  the  Re- 
formed Protestant  Dutch  Church,  of  the  city  of  New  York, 
and  tbeir  successors  forever,  all,  etc.  (the  Shoemaker's  field), 
to  have  and  to  hold  unto  them,  the  said  ministers,  elders, 
and  deacons  of  the  said  Reformed  Protestant  Dutch  Church, 
of  the  city  of  New  York,  and  their  successors,  for  the  pay- 
ment of  the  salary  and  maintenance  of  the  respective  min- 
ister or  ministers,  which,  from  time  to  time,  shall  be  duly 
called  to  the  ministry  of  the  said  church,  and  to  no  other 
uses. 

The  sole  management  and  direction  of  the  property  was 
to  be  in  the  elders  of  the  church  for  the  time  being,  or 
whom  they  shall  appoint,  "  to  account  to  the  minister  or 
ministers,  elders,  and  deacons  of  the  Reformed  Protestant 
Dutch  Church,  of  the  city  of  New  York,  for  the  time  being, 
and  to  them  only." 

We  notice  that  the  word  ministers  is  used. 

Even  as  early  as  1652,  Drisisus  and  Megapoliensis  were 
colleagues  at  New  Amsterdam.  Two  or  more  ministers  to 
a  church  or  congregation  —  a  collegiate  pastorate  —  is  part 
of  the  order  of  the  Church. 

Harpending  was  a  deacon  of  the  church  in  1694,  and  is 
a  grantee  in  a  conveyance  as  early  as  1675.^ 

1  History  of  the  School  of  the  Dutch  Church,  pp.  56,  57.  The  author's 
grandfiither,  Nicholas  Hoffman,  was  a  deacon  in  1773,  and  one  of  the  school 
committee. 

2  Hoffman's  Law  of  the    Corporation  of  New    York  vol.  ii.  p.  218. 


108    Ecclesiastical  Laio  in  the  State  of  Neio   York. 

§  4.  Act  of  1753.  An  act  was  passed  on  the  12th  of 
December,  1753,  entitled  "An  Act  to  enable  the  minis- 
ter, elders,  and  deacons  of  the  Reformed  Protestant  Dntch 
Church,  of  the  city  of  New  York,  to  sell  and  dispose  of 
their  lands  in  Westchester,  commonly  known  by  the  name 
of  the  Manor  of  Fordham  ;  and  also  for  g-rauting  unto  them 
some  further  liberties  and  privileg-es,  for  the  better  man- 
agement of  their  aifairs,  and  the  well  ordering  or  governing 
of  their  said  church."  ^ 

This  act  recited  the  8th  Article  of  the  Surrender  of 
1664 :  "  The  Dutch  shall  enjoy  the  liberty  of  their  con- 
science in  divine  worship  and  church  discipline,  and  their 
own  customs  concerning  their  inheritances."  I  omit  the 
recitals  as  to  the  will  of  one  Steenwyck,  under  which  the 
Manor  of  Fordham  is  alleged  to  have  been  held,  as  not 
material  to  any  purpose. 

This  act  recited  the  charter  of  1696,  and  the  erection  of  a 
church,  with  a  cemetery,  and  a  church-yard,  and  the  seisin 
of  the  Manor  of  Fordham,  with  some  leading  points  of  the 
charter.  It  recites  the  building  of  another  church,  by 
means  whereof  they  have  been  obliged  to  keep  generally 
three,  and  sometimes  four,  ministers  to  perform  divine 
service  in  their  sanctuaries,  and  that  they  were  desirous 
of  selling  such  Manor  of  Fordham,  etc. 

The  charter  of  1696  was,  in  every  article,  matter,  power, 
and  privilege,  approved,  ratified,  and  confirmed,  as  fully 
and  amply  as  if  the  same  were  therein  repeated. 

"  And  the  said  ministers,  elders,  and  deacons,  shall,  by 
virtue  hereof,  have  the  care  and  n^anagement  of  both  the 
said  churches,  or  such  others  as  they  may  hereafter  think 
proper  to  build ;  and  provide  for  the  ministers  and  officers 
thereof. 

"And  on  the  days  of  election  appointed  by  the  charter,  and 
according  to  their  usual  custom  to  elect,  choose  and  appoint 
such  further  and  greater  number  of  elders,  deacons,  and 
other  officers  as  shall  be  necessary  and  convenient ;  which 

1  Journals  Legislative  Council,  vol.  ii.  p.  1145  ;  Van  Schaick  edition  of  the  Laws, 
vol.   i.      Approved  by  the  King  in  Council,  25tli  Februarj',  1755. 


The  Dutch   Church.  109 

said  elders  and  deacons,  etc.,  so  to  be  chosen  from  time  to 
time,  are  hereby  added  to,  and  dechired  to  be,  part  of  the 
said  body  politic,  and  sliall  have  full  power  to  act  with  them 
in  their  respective  stations." 

The  annual  income  of  lands  to  be  held  was  increased  to 
.£1000.  It  was  made  lawful  for  the  said  minister,  elders, 
and  deacons,  and  their  successors,  to  alter  and  enlarge  their 
said  churches,  and  to  purchase  and  build  more  churches, 
houses,  and  gardens,  for  their  ministers  for  the  time  being. 

There  was  an  unusual  clause  in  this  act,  preventing  its 
going  into  effect  until  it  received  the  royal  sanction. ^ 

It  received  such  sanction  at  a  council  25th  February,  1755. 

§  5.  Constitution  of  1777.  The  35th,  36th,  38th,  and  39th 
Articles  of  the  Constitution  of  1777,  are  hereafter  quoted 
fully.  (Post,  chap.  5.)  The  charters  to  the  Dutch  churches 
were,  with  others,  preserved  in  force. 

§  6.  Act  of  1783.  By  an  Act  of  the  25th  February,  1783, 
(1  Greeuleaf,  629,)  "  to  incorporate  the  minister,  elders,  and 
deacons,  of  the  Reformed  Protestant  Dutch  Church  in  Tap- 
pan,  or  town  of  Orange,  of  Orange  County,"  a  deed  of  1729 
was  recited  granting'  a  lot  of  land,  and  the  erection  of  a 
church  for  public  worship  therein,  according  to  the  usages 
and  customs  of  the  Reformed  Dutch  churches  of  the  United 
Netherlands  in  Europe.  The  desire  of  the  petitioners  to  be 
incorporated  was  then  stated.  And  it  was  enacted,  That 
S.  B.,  the  minister,  T.  B.,  etc.  elders,  and  A.  and  B.,  deacons 
of  the  same  church,  and  their  successors,  elected,  chosen  or 
appointed,  according  to  the  mode  practised  in,  or  by,  the 
Reformed  Protestant  Dutch  churches  or  congregations,  be, 
and  they  are  hereby,  made  and  constituted  a  corporation 
and  body  politic,  in  law  and  fact,  to  have  continuance  for- 
ever, by  the  name,  style,  and  title  of  "  The  Minister,  Elders, 
and  Deacons  of  the  Reformed  Protestant  Dutch  Church  of 
the  town  of  Orange,  in  Orange  County." 

The  title  of  the  original  patentees  who  conveyed  in  1729, 
was  declared  to  be  vested  in  the  corporation  thus  created. 

1  Hoffman's  Laws  of  the  Corporation,  vol.  i.  p.  28.     The  People  v.  Trinity 
Church,  22  N.  Y.  Rep.  44. 


110    Ecclesiastical  Laiu  in  the  State  of  Nevj   York. 

The  second  section  gave  tlieni  power,  by  the  name  afore- 
said, to  have,  take,  receive,  acquire,  purchase,  and  possess, 
lands,  tenements,  hereditaments,  and  goods  and  chattels,  as 
any  person  or  persons,  or  any  corporation  or  body  politic 
could,  can,  or  lawfully  may  do,  to  the  annual  value  of  live 
hundred  pounds,  equal  to  eleven  hundred  and  eleven  ounces, 
and  one  ninth  part  of  an  ounce,  of  Seville  pillar  or  Mexico 
plate,  and  no  more ;  and  the  same  lands,  tenements,  heredi- 
taments, goods,  chattels,  and  appurtenances  to  lease,  demise, 
alien,  bargain,  sell  and  dispose  of,  at  their  own  will  and 
pleasure. 

And  by  section  5,  power  was  given  to  the  said  minister, 
elders,  and  deacons,  and  their  successors,  from  time  to  time, 
to  elect  from  among  themselves,  a  president,  treasurer, 
clerk,  and  such  other  officers  as  they  shall  stand  in  need 
of,  and  the  same  at  their  pleasure  to  remove,  change,  or 
continue. 

§  7.  Act  of  Ilarcli,  1784.  On  the  17th  of  March,  1784, 
(Laws,  chap.  9,)  an  act  was  passed  "to  remove  doubts 
which  may  have  arisen  respecting  the  charter  rights  of  the 
minister,  elders,  and  deacons,  of  the  Reformed  Protestant 
Dutch  Church,  of  the  city  of  New  York,  in  consequence  of 
the  late  invasion  of  the  State."  It  referred  to  the  charter 
of  William,  of  the  11th  of  May,  1696,  as  having  been  sus- 
pended by  the  war  :  "  In  order,  therefore,  to  put  the  said 
corporation  in  the  same  state  of  activity  which  they  enjoyed 
at  the  commencement  of  the  said  war,''  it  was  enacted, 
"  that  the  said  charter,  and  all  and  singular  the  rights, 
estates,  powers,  liberties,  franchise,  and  immunities,  thereby 
granted  and  confirmed,  and  which  the  said  corporation  and 
the  members  thereof  did  actually  hold,  exercise,  and  enjoy, 
on  the  11th  of  April,  1775,  by  virtue  of  the  said  chai-ter,  or 
by  virtue  of  any  act  of  the  legislature  of  this  State,  whilst 
the  same  was  the  Colony  of  New  York,  shall  continue  to  be 
and  continue  in  full  force  and  virtue,  to  all  intents  and  pur- 
poses whatever,  notwithstanding  any  nonuser  or  misuser 
thereof,  or  any  part  thereof,  between  the  18th  of  April, 
1775,  and  the  day  of  passing  this  act." 


The  Dutch   Church.  Ill 

"  The  minister,  elders,  and  deacons,  who,  trora  an  ad- 
herence to  the  cause  of  their  country,  were  compelled  by 
the  British  army  to  leave  the  said  city,  or  such  of  them  as 
since  the  evacuation  of  the  said  city,  returned  thereto,  shall 
be  the  minister,  elders,  and  deacons  of  the  Protestant  Re- 
formed Dutch  Church,  of  the  city  of  New  York,  until  others 
shall  be  elected  or  appointed  in  their  stead,  according-  to 
the  said  charter." 

By  the  second  section,  the  power  given  by  the  charter  to 
make  rates  and  assessments  upon  members  in  communion, 
to  pay  the  salaries  and  stipends,  repairing-  the  church,  etc., 
was  stated ;  that  such  power  had  never  been  exercised,  and 
the  present  minister,  elders,  and  deacons,  were  willing  to 
surrender  the  same.  It  was  then  enacted  that  such  power 
should  not  thereafter  be  exercised,  but  should  be  abrogated 
and  annulled. 

It  should  be  observed  that  this  power  to  assess  was  a 
branch  of  the  power  of  taxation,  which  a  governor  could 
not  grant  by  charter.  The  Act  of  Assembly  of  1704,  con- 
ferred it  upon  Trinity  Church,  which  was  not  given  by  its 
charter  of  1697. 

§  8.  General  Act  of  1784.  The  legislature  of  the  State, 
on  the  6th  of  April,  1784,  passed  a  General  Act  for  the 
incorporation  of  religious  societies.  It  was  applicable  to 
every  denomination,  and  prescribed  one  course  for  all.^  Its 
material  provisions  are  stated,  ante,  chap.  3,  §  2. 

§  9.  Act  of  llarch,  1788.  These  provisions  being  found 
inappropriate  to  the  Dutch  churches,  a  statute  was  passed 
on  the  7th  of  March,  1788,  reciting  that  by  the  usages  of 
the  religious  societies  commonly  known  by  the  appellation 
of  the  Reformed  Protestant  Dutch  churches  or  congrega- 
tions, the  minister  or  ministers,  elders,  and  deacons  for  the 
time  being,  have  the  management  of  the  temporalities  of 
the  respective  congTCgations,  and  the  said  congregations 
cannot  avail  themselves  of  the  benefit  intended  by  the  Act 
of  6tli  April,  1784,  without  departing  from  such  usage  long 

1  Law3,  1784,  chap.  18.  2  Laws,  1788,  chap.  61. 


112    Ecclesiastical  Law  in  the  State  of  New   York. 

established.  That  the  congregations  had  petitioned  the 
legislature  for  an  alteration. 

It  is  not  necessary  to  transcribe  the  section  enacted,  as 
it  was  in  substance  the  same  as  the  second  section  of  the 
Act  of  27th  of  March,  1801,  and  the  second  section  of  the 
present  Act  of  1813.  But  the  second  section  of  the  Act 
of  1801  contained  this  clause :  "  Provided,  always,  that 
nothing  therein  contained  shall  be  construed  in  any  man- 
ner to  impair  or  alter  the  rights  of  any  chartered  churches 
within  this  State." 

From  an  Act  of  the  29th  of  April,  1786  (Laws,  chap.  54, 
§  5),  it  appears,  that  there  were  trustees  of  the  Reformed 
Protestant  Dutch  Church  of  Flatbush.  They  were  author- 
ized to  sell  portions  of  their  real  estate,  not  exceeding  six 
acres,  for  an  academy. 

§  10.  Act  of  February,  1792.  By  an  Act  of  the  11th 
February,  1792  (2  Greenleaf,  chap.  11),  the  trustees  of  the 
Reformed  Protestant  Low  Dutch  Church,  at  New  Utrecht, 
in  King's  County,  were  authorized  to  sell  certain  lands, 
not  exceeding  twenty-six  acres,  for  the  advancement  of  the 
interests  and  prosperity  of  the  said  church. 

§  11.  Act  of  February,  1st,  1798,  Albany.  By  an  Act  passed 
February  2,  1798  (Laws  1798,  chap.  7),  entitled  "An  Act 
concerning  the  charter  to  the  minister,  elders,  and  deacons 
of  the  Reformed  Protestant  Dutch  Church,  in  the  city  of 
Albany,"  it  was  recited,  that  they  and  their  predecessors, 
and  the  other  inhabitants  of  the  city  of  Albany,  communi- 
cants or  members  of  the  Reformed  Protestant  Dutch  church 
or  congregation,  had  been  incorporated  by  letters-patent  or 
a  charter  under  the  Great  Seal,  dated  the  10th  of  August, 
1720  ;  that  it  was  granted  thereby,  that  the  minister,  elders, 
and  deacons  for  the  time  being,  should  be  the  consistory  of 
such  church,  and  although  it  was  granted  that  the  consist- 
ory could  call  more  than  one  minister  to  officiate  in  the  said 
church,  and  that  there  should  be  no  preeminence  in  that 
office,  yet  doubts  had  arisen  whether,  in  case  of  a  plurality 
of  ministers,  more  than  one  of  them  could,  at  the  same 
time,  be  a  member  of  the  consistory.     That  the  charter 


The  Dutch   Church.  113 

was  also  iinprovisional  as  to  the  rig-lit  to  elect  more  than 
four  elders  and  four  deacons. 

That  it  had  been  requisite  to  have  two  ministers  for  the 
church ; '  and  an  additional  church,  or  place  of  public  wor- 
ship, had  lately  been  erected. 

It  Avas  enacted  that  in  the  case  of  a  plurality  of  ministers 
in  the  said  church  or  congregation,  only  the  minister  who 
shall  at  any  time  preside  in  the  consistory,  shall,  for  the 
time  being,  be  considered  a  member  of  the  said  consistory ; 
that  they  should  severally  be  president  by  turns,  in  such 
manner  as  should  be  ordained  by  the  consistory.  Provided, 
that  nothing  in  the  act  should  be  construed  to  abridge  the 
powers  and  privileges  of  any  of  the  ministers,  respecting 
the  exercise  of  Christian  discipline  in  such  church,  ac- 
cording to  the  rules  of  Church  government,  ratified  in  the 
Synod  of  Dordrecht,  in  the  year  1618  and  1619,  and  adopted 
by  the  General  Synod  in  New  York  on  the  10th  of  October, 
1792.  That  four  elders  and  four  deacons  of  the  said  church 
or  congregation,  in  addition  to  the  present  members,  might 
be  elected  equally,  as  if  it  had  originally  been  granted  by 
the  said  charter  that  eight  elders  and  eight  deacons  might 
have  been  elected ;  and  provision  was  then  made  as  to  the 
mode  of  electing.  That  four  elders  and  four  deacons,  with 
the  president  for  the  time  being,  should  form  a  consistory 
to  transact  business.  In  case  the  minister  whose  turn  it 
shall  be  to  preside,  shall  neglect  or  be  unable  to  attend  such 
meeting,  it  shall  be  lawful  for  any  other  minister  of  the 
said  church  or  congregation,  or  in  case  all  the  ministers  be 
absent,  then  for  the  senior  elder  of  the  consistory,  to  pre- 
side at  such  meeting.  Provided,  that  when  a  senior  elder 
shall  so  preside,  four  elders  and  four  deacons,  exclusive  of 
the  president,  shall  be  requisite  to  form  a  consistory. 

§  12.  Act  of  Ihtli  February,  1800,  Neiv  York,  By  an  act 
of  the  15th  February,  1800  (Laws,  chap.  4),  it  was  provided 
as  follows :  "  An  Act  to  amend  the  Charter  of  the  Reform- 
ed Protestant  Dutch  Church  in  the  city  of  New  York: 
Whereas,  the  day  appointed  by  the  charter  of  the  Reformed 
Protestant  Dutch  Church,  of  the  city  of  New  York,  for  the 


114    Ecclesiastical  Law  in  the  State  of  New   York. 

election  of  elders  and  deacons,  hath  become  inconvenient 
for  that  purpose  — 

"  Therefore,  etc.,  That  the  elders  and  deacons  of  the  said 
church  shall  annually  hereafter  be  elected  on  the  second 
Thursday  of  January ;  that  the  elders  and  deacons  now  in 
office  shall  continue  until  the  third  Sunday  inclusive,  next 
after  the  day  of  election ;  and  their  successors  in  like 
manner,  until  the  third  Sunday  after  the  first  annual 
election  day  after  that  election. 

"  And  whereas  the  said  charter  does  not  provide  for  sup- 
plying* vacancies  in  said  offices,  which  may  happen  by  res- 
ignation or  declining"  an  election.  Therefore,  That  if  any 
of  the  said  elders  or  deacons  shall  resign,  or  any  one  elected 
shall  decline  the  office  for  which  he  shall  have  been  elected, 
then,  and  in  either  of  these  cases,  an  election  shall  be  held 
to  fill  such  vacancies  in  the  manner  provided  by  the  said 
charter  to  supply  a  vacancy  in  said  offices  by  death  or  re- 
moval." 

§  13.  Act  of  April  9,  1819.  By  an  act  of  April  9, 
1819  (Laws,  chap.  129),  it  was  made  lawful  for  the  religious 
corporation  in  the  city  of  New  York,  known  as  the  minis- 
ter, elders,  and  deacons  of  the  Reformed  Protestant  Dutch 
Church,  of  the  city  of  New  York,  and  their  successors,  to 
hold  real  and  personal  estate  of  an  annual  value  or  income 
not  exceeding  ^65,000,  anything  in  the  original  charter  or 
of  any  law  of  this  State  contained  to  the  contrary  notwith- 
standing. Provided,  that  the  said  property  shall  be  such 
only  as  may  be  necessary  for  the  purposes  of  the  said 
religious  incorporation. 

§  14.  Act  of  April  7,  1819.  Oeneral  Synod.  By  an  act 
passed  April  7,  1819  (Laws,  chap.  110),  the  General  Synod 
of  the  Reformed  Dutch  Protestant  Church  was  created  a 
body  politic  and  corporate,  by  the  name  and  style  of  the 
General  Synod  of  the  Reformed  Protestant  Dutch  Church, 
with  power  to  take,  purchase,  and  hold  real  and  personal 
estate,  and  to  sell  and  convey  the  same,  the  yearly  value  not 
to  exceed  110,000,  and  the  same  shall  not  be  appropriated 
to  any  other  than  religious  and  charitable  uses  and 
purposes. 


The  Dutch   Church.  115 

The  regular  members  were  empowered  to  choose  a  pres- 
ident, three  directors,  and  a  treasurer  of  the  corporation, 
and  to  make  by-laws  relating  to  the  management  and  dis- 
position of  their  property,  the  duties  of  such  officers,  and 
the  duration  of  the  offices. 

The  legislature  could  alter  and  repeal  this  act. 

In  the  year  1839  the  church  in  Lafayette  Place  was 
erected ;  that  in  Ninth  Street  in  1837  ;  and  that  in  Fifth 
Avenue  in  1854.  A  chapel  was  built  in  1864  in  Forty- 
eighth  Street. 

§  15.  Act  of  1813.  The  existing  law  for  incorporating 
such  churches  is  as  follows  (Sess.  36,  chap.  69,  §  2) :  "  The 
minister  or  ministers,  and  elders  and  deacons,  and  if  during 
any  time,  there  shall  be  no  minister,  then  the  elders  and 
deacons  during  such  time,  of  every  Reformed  Protestant 
Dutch  church  or  congregation  now,  or  hereafter  to  be 
established  in  this  State,  and  elected  according  to  the  rules 
and  usages  of  such  churches  within  this  State,  shall  be 
trustees  for  every  such  church  or  congregation  ;  and  it 
shall  be  lawful  for  the  said  trustees,  if  not  already  incor- 
porated, to  assemble  together  as  soon  as  they  shall  deem  it 
convenient,  and  execute  under  their  hands  and  seals,  a  cer- 
tificate certifying  the  name  or  title  by  which  they  and  their 
successors  forever,  as  a  body  corporate  by  virtue  of  this  act, 
shall  be  known  and  distinguished ;  which  certificate,  being 
duly  acknowledged  or  proven  as  aforesaid,  shall  be  recorded 
by  the  Clerk  of  such  county,^  in  a  book  to  be  by  him  pro- 
vided as  aforesaid ;  and  such  trustees  and  their  successors 
shall  thereupon,  by  virtue  of  this  act,  be  a  body  corporate, 
by  the  name  or  title  expressed  in  such  certificate.  It  shall 
be  lawful  for  the  trustees  of  any  such  church  or  congre- 
gation, elected  by  virtue  of  any  former  law  of  this  State, 
by  writing  under  their  hands  and  seals,  to  be  proved,  ac- 
knowledged, and  recorded  as  aforesaid,  to  declare  their 
intention  not  to  continue  any  longer  a  body  corporate  ;  and 
thereupon,  such  body  corporate  shall  cease,  and  all  the 
estate,  real  and  personal,  held  by  them,  shall  pass  to,  and  be 

1  Register  of  the  City  and  County  of  New  York. 


116    Ecclesiastical  Law  in  the  State  of  New   York. 

vested  in,  the  trustees  of  such  church  or  congregation  made 
a  body  corporate  in  the  manner  above  directed.  Provided, 
always,  that  nothing  herein  contained  shall  be  construed  in 
any  manner  to  impair  or  alter  the  rights  of  any  chartered 
churches  within  this  State." 

There  could  be  no  necessity  or  convenience  in  changing 
the  chartered  name  of  the  Dutch  Church  in  New  York ;  and 
I  am  informed  the  provision  of  the  act  to  that  effect  was 
not  resorted  to. 

The  consistoiy  of  the  Dutch  Church  is  analogous  to  the 
vestry  of  the  Episcopal  Church. 

§  16.  On  the  14tli  of  February,  1816,  an  act  was  passed 
(Laws,  chap.  6),  "  Concerning  the  Reformed  Protestant 
Dutch  churches  in  Albany."  It  recited  that  the  congre- 
gations had  been  divided  into  two  congregations,  and  the 
minister,  elders,  and  deacons  of  one  had  been  incorporated 
under  the  existing  law,  by  the  name  of  "  The  Second 
Reformed  Protestant  Dutch  Church  in  the  city  of  Albany," 
and  were  desirous  of  obtaining  the  rights  and  privileges, 
which  were  granted  by  charter  to  the  minister,  elders,  and 
deacons  of  the  Reformed  Protestant  Dutch  Church  in  the 
city  of  Albany. 

It  was  then  enacted,  that  the  minister,  elders,  and 
deacons  of  the  aforesaid  Second  Congregation,  and  their 
successors  in  office,  be  a  body  politic  and  corporate,  by  the 
name  of  the  "  Minister,  Elders,  and  Deacons  of  the  Second 
Protestant  Dutch  Church  in  the  city  of  Albany ; "  to  have 
and  enjoy  the  like  rights,  powers,  and  privileges,  and  be 
subject  to  the  like  responsibilities,  restrictions,  and  govern- 
ment as  are  granted  by,  and  expressed  in,  the  original 
charter  to  the  said  minister,  elders,  and  deacons  of  the 
Reformed  Protestant  Dutch  Church  in  the  city  of  Albany, 
and  the  several  acts  of  the  legislature  confirming  or 
amending  the  same. 

All  hond  fide  contracts  or  conveyances  made  by,  to,  or 
viith  such  Second  Reformed  Church,  in  their  corporate 
name,  should  be  binding  upon  the  parties  and  privies,  the 
same  as  if  made  subsequent  to  the  passage  of  the  act. 


The  Dutch  Church.  117 

The  division  between  the  churches  of  tne  real  and 
personal  estate  was  confirmed. 

Each  of  such  churches  was  to  have  four  elders  and  four 
deacons,  to  be  elected  at  the  time  and  in  the  manner  pre- 
scribed by  the  charter. 

§  17.  Act  of  April,  1835.  On  the  15th  of  April,  1835, 
an  act  was  passed  entitled,  "  An  Act  to  amend  the  Charter 
of  the  Minister,  Elders,  and  Deacons  of  the  Second  Protes- 
tant Reformed  Dutch  Church  in  the  city  of  Albany." 
(Laws,  1835,  chap.  90.) 

The  provisions  of  the  first  seven  sections  relate  exclu- 
sively to  that  church ;  and  it  is  not  deemed  necessary  to  cite 
them,  except  that  by  the  sixth  section,  the  said  church  was 
to  be  known  thereafter,  in  its  legal  corporate  capacity,  as 
"The  Second  Reformed  Protestant  Dutch  Church  in  the 
city  of  Albany." 

And  by  the  seventh  section,  the  mode  of  electing  the 
members  of  the  consistory  of  the  said  church  shall  not 
hereafter  be  controlled  or  regulated  by  the  charter  thereof ; 
but  the  said  members  of  the  consistory  shall  hereafter  be 
elected  according  to  the  rules  and  usages  of  the  Reformed 
Protestant  Dutch  churches  within  this  State. 

The  eighth  section  is  as  follows  :  — 

§  18.  "  Any  of  the  churches  in  this  State  in  connection 
with  the  Reformed  Protestant  Dutch  Church,  whose  tempo- 
ral affairs  are  under  the  management  of  a  consistory,  or 
board  of  officers,  elected  or  chosen  from  such  persons  only 
as  are  in  communion  with  the  said  church,  may,  if  the  said 
consistory  or  board  so  determine,  at  any  time  hereafter, 
confide  the  management  and  care  of  the  temporal  concerns 
of  said  church,  to  a  board  of  trustees,  not  less  than  seven, 
nor  more  than  nine  in  number."  (§  8  of  Act  of  April  15, 
1835,  chap.  90.) 

(2.)  Such  determination  shall  be  reduced  to  writing,  and 
signed  by  the  president  and  secretary,  or  clerk  of  such 
board,  with  the  seal  of  the  corporation  (if  any)  thereto 
affixed,  and  shall  be  acknowledged  by  said  president,  before 
some  person   authorized  to   take   the  acknowledgment  of 


118    Ecclesiastical  Laio  in  the  State  of  New   York. 

deeds,  and  be  recorded  in  the  office  of  the  County  Cleric  of  the 
County,  in  which  such  church  shall  be  situated,  in  the  book 
of  records  relative  to  religious  incorporations,  or  other 
proper  book  of  records.     (Ibid.) 

(3.)  Thereupon  such  proceedings  shall  be  taken  for  the 
election  of  the  said  board  of  trustees;  and  they  shall  be 
chosen,  on  the  same  notice,  in  the  same  manner,  out  of  the 
same  body,  by  the  same  persons ;  shall  have  their  election 
certified  in  the  same  manner,  continue  in  office  for  the  same 
term,  their  successors  be  elected  in  the  like  manner,  and 
shall  have,  possess,  and  enjoy  the  same  rights,  powers,  and 
privileges,  and  be  subject  to  the  like  obligations,  and  shall 
act  in  concurrence  with  the  consistory  of  such  church  in 
the  choice  of  ministers,  and  in  all  respects  be  a  board  of 
trustees,  with  the  same  rights  and  powers,  and  have  the 
like  control  of  the  property  and  temporal  affairs  of  the 
church,  as  the  board  intended  to  be  constituted  by  the 
previous  sections  of  this  act.     (Ibid.) 

§  19.  (1.)  If  the  said  board  of  trustees  that  may  so  be 
elected  by  any  other  church  in  communion  with  the  Re- 
formed Dutch  Church,  shall  deem  it  necessary  or  proper 
to  change  the  corporate  name  of  said  church  to  that  of  a 
Reformed  Dutch  Church,  with  such  further  designation  as 
may  be  necessary  in  consequence  of  the  change  effected  in 
its  organization,  by  the  election  of  a  board  of  trustees  as 
aforesaid,  they  shall  be  at  liberty  so  to  do,  and  certify  their 
determination  in  proper  form,  under  the  signature  of  the 
president,  which  shall  be  acknowledged  by  him  before  some 
officer  authorized  to  take  the  acknowledgment  of  deeds,  and 
be  recorded  in  the  same  manner  as  the  certificate  referred 
to  in  the  last  section.     (Ibid.  §  9.) 

(2.)  And  thereupon  such  corporation  shall  be  known  and 
distinguished  by  the  corporate  name  and  style  that  may 
have  been  determined  upon,  and  expressed  in  said  certifi- 
cate.    (Ibid.) 

§  20.  Any  church  in  connection  with  the  Reformed 
Protestant  Dutch  Church  in  this  State,  the  choice  or 
election  of  the  members  of  whose  consistory  is  not  subject 


The  Dutch  Church  119 

to  the  ecclesiastical  rules  or  jurisdiction  of  said  church, 
may,  at  any  time,  on  the  determination  and  resolve  of  said 
consistory  to  that  effect,  be  made  subject  to  such  rules  and 
jurisdiction;  and  thenceforth  the  choice  of  members  of 
such  consistory  shall  be  made  in  accordance  with  such  rules 
and  the  practice  of  the  said  Dutch  Church.     (Ibid.  §  10.) 

§  21.  The  following  rules  or  regiilations  are  pertinent 
to  the  present  work.  They  are  taken  from  the  Constitution. 
(Edition  1840.) 

The  elders  and  deacons,  together  with  the  minister  or 
ministers,  if  any,  shall  form  a  consistoiw,  and  the  minister 
shall  preside  at  all  consistorial  meetings ;  but  in  the  absence 
of  a  minister,  the  consistory  may  appoint  one  of  the  elders 
to  be  their  president,  pro  tern. ;  and  it  shall  be  competent  to 
the  several  consistories  to  prescribe  the  mode  and  time  of 
calling  their  meetings.  If  there  be  a  plurality  of  ministers, 
they  shall  preside  in  rotation.     (Art.  II.  §  1.) 

The  elders,  with  the  ministers  of  the  Word,  constitute 
what,  in   the   original   articles  of  Church   government,  is 
properly  called  the  consistory.      But  as  the  deacons   have 
always  in  America,  where  the  congregations  w^ere  at  first 
very  small  (see  Synod  of  Dort,  Art.  38),  been  joined  with 
the  elders,  and  wherever  charters  have  been  obtained,  are 
particularly  named,  as  forming  with  them  one  consistory,  it 
is   necessary   to  define  their    joint   as   well   as   respective 
powers.     From  the  form  of  their  ordination,  it  is  evident 
that  to  the  elders,  together  with  the  ministers  of  the  Word, 
is  committed  the  spiritual  government  of  the  church,  while 
to  the  deacons  belong  the  obtaining  of  charitable  assistance, 
and  the  distribution  of  the  same  for  the  relief  and  comfort 
of  the  poor.     When  joined    together   in    one   board,  the 
elders  and   deacons   have  all  an   equal   voice  in  whatever 
relates  to  the  temporalities  of  the   church,  to  the  calling 
of  a  minister,  or  the  choice  of  their  own  successors,  in  all 
which  they  are  considered  the  joint  and  general  representa- 
tives of  the  people ;  but  in  admitting  members  to  full  com- 
nmnion,  in  exercising  discipline  upon  those  who  have  erred 
from  the  faith,  or  offended  in  morals,  and  in  choosing  dele- 


120  Ecclesiastical  Laiv  in  the  State  of  New   YorJc. 

gates  to  attend  the  Classis,  the  elders,  with  the  ministers, 
have  alone  a  voice. 

No  consistory  shall  be  constituted  in  any  place,  without 
the  previous  advice  and  concurrence  of  Classis.     (Ibid.  3.) 

Elders  and  deacons  shall  be  chosen  annually,  and  the 
result  of  such  election  shall  be  published  in  the  church  or 
place  of  worship  of  the  congregation  three  successive 
Sabbaths  previous  to  their  ordination,  to  the  end  that  all 
lawful  objections  to  such  ordination  may  be  offered  to,  and 
duly  considered  and  adjudicated  by,  the  consistory.  (Ibid. 
§4.) 

A  majority  of  the  consistory,  regularly  convened,  shall 
be  a  quorum  for  the  transaction  of  business  ;  and  in  a  like 
manner  a  majority  of  ministers  and  elders,  and  also  a 
majority  of  deacons  so  convened,  shall  be  a  quorum  respect- 
ively. It  shall  be  competent  for  the  consistory,  when  an 
election  shall  have  been  omitted  at  the  usual  time,  to 
appoint  another  time  for  that  purpose  on  an  early  day, 
giving  the  like  notice  as  herein  above  prescribed,  and  in 
like  manner  for  filling  vacancies  which  may  occur.  (Ibid. 
§4.) 

§  22.  General  Remarks.  In  considering  the  legal  position 
of  the  Dutch  Church,  we  are  struck  with  the  strong 
features  of  permanence  and  consistency  which  it  exhibits 
from  its  foundation,  particularly  from  its  charter  of  1696. 

And  its  resemblances  to  the  frame  of  the  charter  of 
Trinity  Church  of  1697,  is  very  marked. 

(1.)  There  was  one  minister  recognized,  and  there  was  a 
right  to  call  other  ministers  as  assistants.  So  there  was 
one  rector  of  Trinity  Church,  and  a  right  to  nominate 
assistants. 

(2.)  I  have  no  doubt  that  under  the  charter  of  1696,  new 
congregations  could  be  formed  worshiping  in  new  edifices, 
but  retaining  their  connection  with,  and  subordination  to, 
the  ecclesiastical  authority  of  the  church  of  the  charter. 
That  church  in  local  habitation  was  the  church  in  Garden 
Street,  perhaps  also  the  church  in  the  Fort. 

(3.)  The  Act  of  1753  explicitly  sanctions  the  spread  of 


The  Dutch   Church.  121 

the  same  chnrch,  —  that  particular  corporate  church,  into 
several  congreg-ations,  in  distinct  edifices.  The  governing 
power  remained  the  same  in  substance  and  form.  There 
was  allowed  au  increase  in  the  number  of  the  persons 
constituting  such  governing  power.^ 

(4.)  There  is  another  analogy  to  English  law  and  to 
the  charter  of  Trinity  Church.  It  was  a  right  clearly 
incident  to  every  parish  or  mother  church  to  have  what  are 
called  chapels  of  ease.  They  were  simply  places  of  worship 
for  convenience  of  parishioners.  They  were  component 
parts  of  the  mother  church. 

The  worshipers  in  the  chapels  had  all  the  rights  of  the 
worshipers  in  the  parish  church,  and  were  subject  to  the 
same  duties.  The  rector  of  tlie  parish  governed  the  chap- 
els. He  had  curates  under  him,  but  wholly  subordinate. 
Here  I  believe  there  is  a  difference.  The  collegiate  minis- 
ters are  on  an  equality,  except  as  some  presidency  is  conven- 
tionally provided. 

With  this  qualification  the  congregations  in  William 
Street,  Lafayette  Place,  and  Fifth  Avenue,  are  precisely  in 
the  same  legal  position  as  the  chapels  of  St.  Paul  and  St. 
John  are  to  Trinity  Church.  In  each  case,  one  corporation 
established  them  as  its  own  branches.  One  corporation 
governs  them.  The  worshipers  in  each  are  members  of  the 
same  corporation,  are  entitled  to  votes  according-  to  the 
rules  of  the  corporation,  and  have  all  the  same  equal  privi- 
leges, unless  modified  by  consent. 

(5.)  But  the  English  law  recognized  what  are  called 
parochial  churches  or  chapels  ;  and  here  the  position  of 
Trinity  Church  in  its  contests,  and  of  the  Dutch  Church,  is 
singularly  alike. 

These  parochial  chapels  are  those  which  by  deed  or  pre- 
scription have  become,  though  within  the  parish  bounds, 
separated  from  the  parish  church,  with  a  separate  rector, 
separate  rights  of  ministrations,  baptisms,  sepultures  ; 
neither  owing  duty  to,  nor  sharing  in  the  privileges  of,  the 
parish  church. 

1  Dr.  DeWitt's  Evidence  in  Marsclus  v.  The  Dutch  Church,  1859. 


122    Ecclesiastical  Law  in  the  State  of  New   York. 

Now  this  is  exactly  what  Trinity  Church  has  asserted  with 
unanswerable  force,  as  to  all  the  churches  separately  organ- 
ized and  incorporated  in  the  city  of  New  York,  denying  that 
the  members  of  such  separate  organizations  and  corpora- 
tions could  have  a  right  to  vote  for  vestrymen  of  Trinity 
Church.  This  is  precisely  what  the  Reformed  Dutch  Church 
insist  upon.  I  quote  from  the  answer  of  that  church  to 
the  complaint  of  the  Rev.  Mr.  Marselus,  in  the  Supreme 
Court.     It  is  very  striking :  — 

"  Edifices  were  built  for  the  accommodation  of  the 
members  of  the  corporation,  being  members  in  communion 
with  the  said  church  so  incorporated,  and  as  congregations 
not  separating  themselves  from  the  said  corporation,  but 
continuing"  members  thereof.  They  deny  that  the  congre- 
gation forming  the  cliurch  at  Greenwich,  after  it  became  a 
separate  congregation,  continued  to  be  a  part  or  members 
of  the  corporation  of  the  defendants ;  but  that  they  organ- 
ized themselves  into  a  separate  consistory  and  congregation, 
and  into  a  separate  corporation,  under  the  general  law  of  the 
State." 

We  may  almost  suppose  ourselves  reading  the  masterly 
argument  of  the  late  David  D.  Barnard  in  the  Trinity 
Church  case.^ 

I  am  not  aware  that  any  minister  of  a  separate  church, 
organized  and  incorporated,  has  demanded  to  share  in  the 
revenues  of  Trinity  Church,  as  a  minister  in  the  parish. 
The  claim  would  be  upon  the  same  footing  as  to  its  legality 
as  the  claim  of  the  separated  members  to  vote.  But  in  the 
case  of  the  Dutch  Church,  the  question  has  arisen,  and 
been  decided  in  the  Court  of  Appeals.  (The  Attorney- 
General,  ex  rel. ;  Marselus  v.  The  Minister,  etc.,  1867.) 

The  relator  was  the  pastor  of  the  Reformed  Dutch  Church 
situated  at  Greenwich,  in  the  city  of  New  York.  This  had 
become  a  separately  organized  church  in  1803,  with  the 
assent  of  the  Classis,  the  proper  ecclesiastical  authority,  and 
had  become  incorporated  under  the  statute  of  the  State  then 
in  force.     It  had  a  distinct  pastorate  and  consistory.     Its 

1  Letter  to  Senator  Brooks.     Albany,  1857. 


Tlie  Dutch  Church.  123 

pastors  were  not  known  or  recognized  as  ministers  of  the 
collegiate  pastorate  of  the  church  under  the  charter. 

The  information  set  foi-tli  the  position  of  the  relator  as  a 
minister  of  the  Dutch  Church  generally,  and  pastor  of  the 
church  at  Greenwich  hy  regular  succession.  It  set  out  the 
will  of  one  Steinwich,  the  questions  arising  upon  which  are 
not  of  importance  here.  Also,  the  will  of  Haqiending, 
before  quoted ;  that  a  very  large  amount  of  rents  and  profits 
derived  from  the  property  had  been  received  by  the  defend- 
ants ;  that  such  reception  was  in  trust  for  the  benefit  of  a 
class  of  ministers,  of  which  the  relator  was  one,  and  claiming 
an  application  of  a  proper  portion  to  his  maintenance. 

The  judge  at  Special  Term  held,  that  the  devise  of 
Harpeuding  was  exclusively  for  the  benefit  of  the  ministers 
of  the  church  of  the  defendants.  He  says  :  "  At  this  time 
the  defendants  being  incorporated  by  the  name  of  '  The 
Minister,  Elders,  and  Deacons  of  the  Reformed  Protestant 
Dutch  Church,  of  the  city  of  New  York,'  and  these  words 
being  used  in  the  will  to  describe  the  only  body  for  whose 
exclusive  benefit  the  devise  was  made,  and  to  whom  alone, 
by  express  direction,  there  was  to  be  any  accountability  for 
the  income  of  the  property  shown,  that  the  donor  intended 
that  body  alone  to  have  the  right  to  the  income  of  his 
property  without  accountability  to  others,  whether  of  the 
same  communion  of  faith  or  not." 

The  Court  at  General  Term  concurred  in  this  view. 

Another  point  decided  at  General  Term  was,  that  the 
devise  was  void  under  the  Statute  of  Wills  of  Henry  VIII., 
and  the  trusts  fell  with  it.  The  plaintifl^  could  not  claim 
as  cedui  que  trust,  when  a  will  erecting  the  trusts  was 
invalid. 

The  title  to  the  real  estate  rested  upon  the  adverse  pos- 
session of  140  years,  which  was  enough,  whether  a  claim 
was  made  under  a  void  conveyance,  or  without  any  proper 
title  at  all.  The  presumption  of  a  grant  from  the  true 
owner  was  to  be  made.  (Harpendingt?.  The  Dutch  Church, 
16  Peters,  455 ;  Humbert  v.  Trinity  Church,  22  Wendell, 
485.) 


124    Ecclesiastical  Laiu  in  the  State  of  New  York. 

In  the  Court  of  Appeals,  the  case  was  heard  April,  1867, 
and  decided  in  July  of  that  year. 

The  opinion  of  the  Court,  delivered  by  Judge  Grover, 
may  be  thus  summarily  stated. 

That  the  claim  was,  that  the  relator,  and  all  other  minis- 
ters of  the  Dutch  Reformed  Church,  engaged  in  ministering 
in  churches  in  the  city  of  New  York,  in  communion  with 
the  Protestant  Reformed  Dutch  Church,  were  entitled  to 
payment  of  their  salaries,  in  whole  or  in  part,  out  of  the 
income  of  property  in  the  hands  of  the  defendants,  derived 
under  the  will  of  one  Steinwich  of  1684,  and  of  one  Harp- 
ending  of  1723. 

If  the  facts  of  being  a  minister  of  the  church  designated, 
and  officiating  in  a  church  in  the  city  of  New  York,  and 
being  in  communion  with  the  Dutch  Reformed  Church, 
gave  a  legal  right  to  such  payment,  the  case  of  the  relator 
was  made  out. 

He  notices  the  difficulty  of  the  Attorney-General  sustain- 
ing the  action  upon  the  theory  of  the  plaintiflF,  but  assumes 
that  it  may  be  sustained. 

The  question  was,  whether  the  trusts  created  by  the  wills 
were  in  favor  of  one  particular  church,  represented  by  the 
defendants,  or  whether  they  were  in  favor  of  all  the  offi- 
ciating clergy  of  the  denomination,  from  time  to  time 
officiating  in  the  city  of  New  York. 

When  Steinwich  made  his  will,  there  was  but  one  such 
church  in  the  city.  It  was  unincorporated,  and  known  as 
the  Nether  Dutch  Church. 

The  devise  of  Steinwich  was  to  the  elders  or  overseers  of 
the  Nether  Dutch  Reformed  congregation,  within  the  city 
of  New  York,  for  the  proper  use  and  behoof  of  the  minister 
of  the  Nether  Dutch  Reformed  congregation,  within  the 
city  of  New  York,  for  the  support  and  maintenance  of  their 
minister,  ordained  according  to  the  Church  orders  of  the 
Netherlands,  etc. 

The  question  was  not  whether  the  will  was  valid,  but  it 
was,  to  whom  did  Steinwick  intend  to  give  the  property, 
and  on  what  trust  ?  The  facts  before  stated  left  no  doubt 
upon  this  point. 


The  Dutch  Church.  125 

If  the  will,  and  the  deed  executed  pursuant  to  its  direc- 
tions, conveyed  a  title,  that  title  and  the  trust  was  acquired 
by  the  parties  for  the  benefit  of  this  particular  cong-regation. 
If  no  title  was  acquired,  no  trust  was  created,  and  the  rela- 
tor, of  course,  had  no  claim  on  the  property  or  income. 

The  charter  of  1696  is  then  stated.  After  an  examina- 
tion of  its  provisions,  it  was  concluded,  that  this  partic- 
ular church  alone  was  incorporated;  that  by  the  clause, 
"  those  in  communion  with  the  Protestant  Reformed  Dutch 
Church,"  was  meant  members  of  this  particular  church; 
that  the  charter  did  not  create  a  denominational  corpora- 
tion, embracing-  all  the  churches  or  congregations  that 
might  exist  thereafter  in  the  city  of  New  York. 

The  will  of  Harpending  of  1723  is  then  noticed.  It 
followed  from  the  previous  positions  stated,  that  if  the  will 
was  valid,  the  title  vested  in,  and  the  trust  was  for  the 
benefit  of  this  Protestant  Reformed  Dutch  Church. 

It  was  wholly  immaterial  whether  the  will  was  valid  or 
not,  because  if  valid,  the  whole  beneficial  interest  vested  in 
this  particular  church. 

It  is  noticed  that  a  colonial  act  authorized  the  corpora- 
tion to  apply  its  income  to  the  building  or  repairing  of 
churches.  This  it  had  done,  governing  all  by  the  same  ofii- 
cers  as  one  church,  preserving  all  in  the  same  corporation. 

The  case  showed  that  the  income  largely  exceeded  what 
was  necessary  to  pay  the  ministers  employed,  and  the 
question  was,  —  What  should  be  done  with  the  surplus  ? 

After  referring  to  the  course  in  the  English  Court  of 
Chancery  of  a  charitable  scheme  upon  the  doctrine  of 
c\j  jjres,  where  the  intent  cannot  be  literally  or  fully  carried 
out,  the  Court  say,  that  our  courts  will  only  give  effect  to 
the  intention  of  donors  when  intelligently  expressed  and 
in  accordance  with  the  rules  of  law.  A  substantial  defect 
will  not  be  supplied. 

The  property  was  devised  to  the  defendants ;  and  so  far 
as  the  parties  before  the  court  were  concerned,  it  must  be 
conceded  that  they  held  the  legal  title.  The  surplus,  after 
discharging  the  trust  charged  upon  the  fund,  belonged  to 


126    Ecclesiastical  Law  in  the  State  of  New   York. 

the  defendants,  to  be  used  for  any  purpose  authorized  by 
their  act  of  incorporation.     The  judgment  was  affirmed. 

In  the  case  of  the  Dutch  Church  in  Garden  Street  v.  Mott 
(7  Paige,  77),  the  bill  was  to  compel  a  purchaser  to  accept  a 
conveyance  of  the  Garden  Street  property  sold  to  him. 
The  deed  of  the  corporation  of  New  York  to  Bayard,  and 
the  deed  by  him  to  Van  Cortlandt  and  others,  of  February, 
.1691,  for  the  use  of  the  minister,  elders,  and  deacons  of 
the  Low  Dutch  Church,  and  of  their  successors  forever, 
and  for  no  other  use  or  uses.  The  charter  of  1696  is 
stated,  and  that  it  was  granted  to  enable  the  corporation  to 
hold  this  property  to  the  uses  for  which  it  had  been  con- 
veyed, and  by  which  it  was  confirmed  to  them.  The  pre- 
sumption, after  the  lapse  of  one  hundred  and  fifty  years, 
was,  that  the  trustees.  Van  Cortlandt  and  others,  had  con- 
veyed the  legal  title.  But  independently  of  this  presump- 
tion, the  Act  of  1801  (1  R.  L.  1801,"  p.  339,  §  4)  was 
operative  to  transfer  the  legal  estate  from  the  heirs  of  the 
trustees  to  the  church  when  incorporated,  although  no 
conveyance  had  been  executed. 

There  could  be  no  doubt  that  previous  to  the  separation 
of  the  complainants  from  the  collegiate  churches,  in  1812, 
the  legal,  as  well  as  equitable  title,  was  vested  absolutely  in 
the  corporation,  and  no  violation  of  the  trust  could  revest 
any  title  in  the  heirs  of  Bayard,  or  of  the  original  trustees, 
although  a  breach  of  trust  might  form  a  proper  ground  for 
an  application  by  the  corporators,  or  by  the  Attorney-Gen- 
eral, to  compel  the  due  execution  of  the  trust. 

The  complainants  became  separately  a  distinct  church, 
and  were  separately  organized  and  incorporated  in  1812, 
and  the  corporation  of  the  collegiate  churches  gave  them  a 
lease  for  999  years  with  certain  restrictions  and  conditions. 
After  the  destruction  of  the  edifice  by  fire,  in  1835,  the 
absolute  title  in  fee  was  conveyed  in  consideration  of  the 
sum  of  1100,000. 

The  rule  of  the  common  law  giving  corporations  the 
unlimited  right  of  alienation,  and  the  restrictions  upon  the 
alienation  of  Church  property  by  statutes  in  England,  were 


The  Dutch  Church.  127 

noticed.  The  supposition  that  these  restrictions  existed 
here,  led  to  the  enactment  making  the  sanction  of  the 
Chancellor  necessary  to  a  sale.  There  was  no  doubt  that 
the  intention  of  the  legislature  was  to  give  to  every  relig- 
ious corporation  an  unlimited  power  to  convey  any  real 
estate  held  by  them  in  trust  for  the  corporators,  provided 
the  previous  consent  of  the  Chancellor,  and  a  direction  for 
the  proper  application  of  the  proceeds  was  obtained. 

I  am  not  aware  of  anything  else  in  our  laws  or  decisions 
peculiarly  applicable  to  the  Dutch  Church ;  and  I  have 
deemed  it  useful  to  comprise  in  one  chapter  all  that  I  have 
found  so  peculiar. 

At  the  meeting  of  the  General  Synod  of  the  Church  in 
June,  1867,  an  elaborate  and  able  report  was  submitted, 
upon  a  proposition  for  a  change  of  the  ecclesiastical  and 
corporate  name  of  the  church.  It  closed  with  a  series  of 
resolutions.  The  first  was  :  That  the  General  Synod  pro- 
poses to  the  Classis,  the  amendment  of  the  first  section  in 
Article  5,  chap.  2,  of  the  Constitution,  by  appending  to  it 
the  following  sentence :  "  The  body  thus  formed  shall  be 
called  the  General  Synod  of  the  Reformed  Church  in 
America." 

Embarrassed  with  considerations  arising  from  the  fre- 
quent use  of  the  term,  "  Reformed  Dutch  Church,"  in  the 
Constitution  and  Formularies,  and  coming  to  the  conclusion 
not  to  expunge  the  term  absolutely,  the  following  resolu- 
tions were  adopted :  — 

"  2.  Eesolved,  That  the  Synod  propose  to  the  Classis,  the 
adoption  of  the  following  prefatory  note,  with  a  view  to  its 
incorporation  into  the  Constitution. 

"  In  the  year  1867,  the  Reformed  Dutch  Church  which  is 
named  in  the  following  pages,  dropped  from  its  ecclesias- 
tical name  the  word  'Dutch,'  which  was  first  formally 
assumed  therein  in  the  year  1792,  and  added  the  words  '  in 
America,'  so  that  the  said  church  might  thenceforth  be 
known  as  the  Reformed  Church  in  America ;  yet  in  order 
that  the  absolute  identity  of  the  Reformed  Church  in 
America  with  the  Reformed  Dutch  Church  might  be  subject 


128    Ecclesiastical  Law  in  the  State  of  New   York. 

to  no  possible  doubt  or  dispute,  it  was  also  ordained  that  the 
epithet  '  Dutch '  should  be  retained  in  all  those  places  in 
the  Constitution  in  which  it  had  previously  been  used,  but 
should  be  inclosed  in  brackets,  to  indicate  the  purpose  of 
the  church  to  discourage  the  ecclesiastical  and  popular  use 
of  that  word  as  a  part  of  its  name." 

(2.)  A  third  resolution  was  as  follows :  — 

3.  "Resolved,  That  the  General  Synod  proposes  to  the 
Classis,  the  further  amendment  of  the  Constitution  by 
prefixing'  thereto  a  title  in  the  terms  following  :  '  The 
Constitution  of  the  Reformed  Chui'ch  in  America,  known 
for  a  time  as  the  Reformed  Dutch  Church,  and  also  desig- 
nated in  the  Act  of  Incorporation,  passed  by  the  legislature 
of  New  York  April  7,  1819,  as  the  "  Reformed  Protestant 
Dutch  Church,"  embracing-  the  Catechism,  the  Compendi- 
um, the  Confession  of  Faith,  the  Canons  of  the  Synod  of 
Dordrecht,  and  the  Liturgy,'  " 

A  committee  was  appointed  to  consider  the  details  of  the 
civil  legislation  which  the  proposed  change  of  name  may 
make  necessary,  and  to  report  on  the  same  at  an  adjourned 
meeting  of  the  Synod. 

In  the  historical  notice  which  accompanied  these  resolu- 
tions, the  fact  was  stated,  that  the  designation  Dutch  was 
unknown  to  the  Hollanders,  who  would  be  as  slow  to  call 
themselves  Dutch  as  to  call  themselves  Russians.  The 
Church  of  Hollanders  was  of  Nederlanclie.  Particular  con- 
gregations might  be  termed  Nederduitsche.  The  Hollanders 
who  brought  their  Church  to  this  country  were  members 
of  the  "Reformed  Church  of  the  Netherlands."  The 
change  took  place  after  the  English  conquest. 

The  charter  to  the  church  in  New  York  is  referred  to. 
It  will  be  seen  that  the  other  charters,  and  the  statute  of 
1753,  use  the  title  "  The  Reformed  Protestant  Dutch 
Church."     [Ante,  §  4.) 

Tliis  view  of  the  original  true  title  of  the  church  is  con- 
firmed by  the  Article  of  Freedoms  and  Exemptions  of  1640, 
before  cited.     {Ante,  §  1  of  this  chapter.) 


The  Didch   Church.  129 


THE   TRUE   REFORMED   CHURCH. 

Tlie  churches  or  congregations  in  this  State,  in  connec- 
tion with  the  church  which  has  styled  itself  "  The  True 
Reformed  Church  in  the  United  States  of  America,"  may 
incorporate  themselves  in  the  mode  prescribed  in  and  by  the 
second  section  of  the  act  entitled,  "  An  Act  to  provide  for 
the  Incorporation  of  Religious  Societies,"  passed  April  5, 
1813.     §  1  of  Act  of  April  21,  1825.     Laws,  chap.  303.) 


CHAPTER  VI. 

THE    PEESBYTEKIAN   CHURCH. 

In  chapter  1,  I  have  stated  the  history  of  the  Acts  of 
the  Colonial  Assembly  passed  in  1693,  and  subsequent  years, 
for  settling  a  ministry  in  four  counties,  and  the  efforts  of 
the  Presbyterians,  particularly  at  Jamaica,  to  have  the 
amount  levied  under  those  laws,  applied  to  the  support  of  a 
minister  of  their  own.  These  efforts  were  finally  success- 
ful at  that  place,  and  through  a  judicial  decision.  It  was 
shown,  that  with  the  exception  of  the  violent  and  unwar- 
rantable conduct  of  Lord  Cornbury,  the  course  of  the 
Governors,  particularly  of  Governor  Hunter,  had  been  mod- 
erate and  legal.  It  was  also  noticed,  that  while  charters, 
four  in  number,  had  been  granted  to  Dutch  churches,  none 
had  been  given  to  any  other  denomination. 

In  1719,  1721,  and  1759,  applications  were  made  to  the 
Governors,  on  behalf  of  Presbyterians  in  the  city,  for  acts 
of  incorporation.  That  of  the  last  date  was  referred  by 
Governor  Delancy  to  the  Lords  of  Trade.  In  July,  1765, 
they  wrote  to  Governor  Moore,  that  his  Majesty  had  been 
pleased  to  refer  to  them  for  consideration  the  petition  of 
the  present  ministers  of  the  Presbyterian  Church  in  the 
city  of  New  York,  praying  to  be  incorporated  by  a  charter 
under  the  seal  of  the  province,  for  the  purposes  set  forth  in 
such  petition.  Referring  to  a  similar  application  made  to 
Lieutenant  Governor  Delaucy,  and  to  the  proceedings  had 
thereon,  they  required  him  to  submit  the  petition  to  the 
Council  and  to  report  in  the  fullest  manner,  the  present 
state  of  this  Protestant  establishment,  the  proceedings  ujjon 
the  former  petition,  and  the  reasons  why  it  was  not  com- 


The  Preshyierian   Church.  131 

plied  with,  and  his  opinion  whether  there  were  reasons 
against  granting-  the  request.^ 

In  Jnly,  1767,  the  Lords  of  Trade  made  a  report  to  the 
Committee  of  the  Privy  Council  on  Plantations,  stating, 
that  they  had  considered  the  petition  of  the  ministers, 
elders,  deacons,  and  trustees  of  the  Presbyterian  Church  in 
the  city  of  New  York,  for  a  charter  to  create  them  a  body 
politic  and  corporate,  according  to  the  Westminster  Con- 
fession of  Faith,  catechisms  and  directions.  They  state  that 
many  proceedings  had  been  had  before  the  Council  in  New 
York,  touching  an  application  there  for  such  a  charter.  In 
consequence  they  had  directed  the  Governor  to  report  such 
proceedings,  and  his  views  upon  the  whole  subject.  That 
he  had  done  so,  and  that  a  copy  of  his  report  was  annexed.^ 
That  it  stated  a  point  of  great  weight  and  importance, 
namely,  whether  his  Majesty,  consistent  with  the  obligation 
he  is  under  by  his  coronation  oath,  founded  on  the  Act  of  the 
5th  of  Queen  Anne,  cap.  5,  entitled  "  An  Act  for  securing 
the  Church  of  England  as  by  law  established,"  could  create 
such  an  establishment  in  favor  of  the  Presbyterian  Church 
as  was  now  requested.  They  proceed :  "  That  is  a  question 
of  too  great  importance  for  us  to  decide,  but  we  are  of 
opinion,  that  independent  of  this  objection,  it  is  not  expe- 
dient, upon  principles  of  general  policy,  to  comply  with  the 
prayer  of  the  petition,  or  to  g-ive  the  Presbyterian  Church 
of  New  York  any  other  privileges  or  immunities  than  it  is 
entitled  to  by  the  laws  of  toleration.^ 

On  the  4th  of  May,  1775,  the  Earl  of  Dartmouth  writes 
to  Governor  Tryon  thus :  "  The  only  difficulty  or  doubt 
which  has  occurred  is,  whether  such  charters  would  not 
have  an  effect  to  create  an  establishment  inconsistent  with 
the  principles  of  the  law  of  England ;  and  it  was  the  more 
necessary  to  attend  to  this,  as  it  was  first  started  by  the 
Council  of  New  York,  upon  the  application  made  in  1766. 
If,  however,  upon  consideration  of  the  cases  in  which  the 
request  was  now  made,  the  law  servants  of  the  King  in  the 

1  Colonial  Documents,  vol.  vii.  p.  346.  ^  I  have  not  been  able  to  find  it. 

^  Colonial  Documents,  vol.  vii.  p.  943. 


132    Ecclesiastical  Law  in  the  State  of  New  York. 

Province  and  the  Council  shall  be  of  opinion  that  they  are 
free  from  any  difficulty  of  this  nature,  it  was  the  King's 
pleasure  that  he  do  grant  such  charter."  ^ 

What  would  have  been  the  result  of  this  relaxation  of  the 
former  view  of  the  Lords  of  Trade,  we  can  only  conjecture. 
The  strife  of  the  Revolution  quickly  ensued,  and  prevented 
any  fui'ther  eifort  for  the  attainment  of  the  object. 

It  appears  that  as  early  as  1719,  a  piece  of  ground  was 
conveyed  to  Dr.  John  NichoU,  Patrick  McKnight,  Gilbert 
Livingstone,  and  Thomas  Smith,  and  a  church  was  built 
upon  it.  This  was  the  church  in  Wall  Street,  west  of  Nas- 
sau Street,  as  is  shown  upon  Lyne's  map  of  1728,  and  a 
church  continued  on  that  site  until  1848. 

On  the  10th  of  March,  1730,  the  persons  in  whom  the 
legal  title  was  then  vested,  conveyed  the  property  to  the 
moderator  of  the  General  Assembly  of  the  Church  of  Scot- 
land, the  commissioner  thereof,  the  moderator  of  the  Pres- 
bytery of  Edinburgh  and  others,  as  a  Committee  of  the 
General  Assembly.  On  the  15th  of  August,  1732,  the 
Church  of  Scotland,  by  an  instrument,  under  the  seal  of 
the  General  Assembly,  and  signed  by  various  members  and 
officers,  declared,  that  it  should  be  lawful  for  the  Presbyte- 
rians then  residing,  or  that  should  thereafter  be  resident  in 
or  near  the  city  of  New  York,  or  others  joining  with  them, 
to  convene  in  the  aforesaid  church  for  the  worship  of  God, 
and  for  the  dispensation  of  the  gospel  ordinances,  fully  and 
freely  at  all  times,  they  maintaining  such  edifice  and  appur- 
tenances at  their  own  charge.^ 

Between  1732  and  1766,  a  conveyance  must  have  been 
made  by  the  trustees  in  Scotland  to  trustees  in  New  York. 

On  the  25tli  of  February,  1766,  a  conveyance  was  made 
by  the  Mayor,  Aldermen,  and  Common  Council  of  the  city 
of  New  York,  to  John  Rodgers  and  Joseph  Treat,  present 
ministers  of  the  English  Presb}i;erian  Church,  in  the  said 
city,  William  Smith  and  others,  the  then  elders,  John 
Stephens  and  Peter  Kiker,  the  then  deacons,  and  Thomas 

1  Colonial  Documents,  vol.  viii.  p.  572. 

2  Smith's   Histortf  of  Nl-av  York. 


The  Presbyterian   Church.  133 

Smith,  Peter  R.  Living'ston,  and  others,  the  present  tnistees 
of  the  said  church.  The  petition  of  such  parties  is  recited. 
It  is  stated,  that  although  the  petitioners  were  already  pos- 
sessed of  a  convenient  and  spacious  edifice  for  the  public 
worship  of  Almighty  God,  yet  by  their  great  growth,  that 
building  was  rendered  incapable  of  containing  their  congre- 
gation, and  the  cemetery  was  too  small  for  the  burial  of  the 
dead.  They  refer  to  the  grant  of  the  burial-ground  to 
Trinity  Church,  and  of  a  number  of  lots  to  the  Reformed 
Dutch  at  a  reasonable  rate,  and  they  suggest  the  triangular 
piece  of  ground  adjoining  the  Vineyard,  as  suitable  for  their 
purposes. 

The  grant  was  made  to  the  petitioners  as  trustees,  upon 
condition  of  their  erecting  thereupon  an  edifice  or  church 
for  the  worship  of  Almighty  God,  or  to  use  the  same  or 
part  thereof  for  a  cemetery ;  and  they  shall  not  appro- 
priate, apply,  or  convert  the  same  forever  thereafter  to 
private  secular  uses.  There  was  reserved  an  annual  rent 
of  forty  pounds  to  the  corporation.  There  was  a  clause  of 
reentry  upon  breach  of  either  of  these  conditions. 

Between  the  6th  day  of  April,  1784,  and  the  31st  of 
August  of  that  year,  the  church  was  incorporated  by  the 
name  of  the  First  Presbyterian  Church  of  the  city  of  New 
York,  under  the  General  Act  of  said  6th  of  April,  1784. 

On  the  31st  of  August,  1784,  the  survivors  of  the 
trustees  in  the  grant  of  1766,  conveyed  the  premises  ad- 
joining* the  Vineyard,  to  the  corporation  of  the  First  Pres- 
byterian Church  in  the  city  of  New  York. 

By  an  Act  of  March  6,  1793  (3  Greenleaf,  51),  the  cor- 
porations of  the  First  Presbyterian  Church  in  the  city  of 
New  York  was  authorized  to  take  and  hold  real  estate, 
to  a  value  not  exceeding  the  sum  of  six  thousand  dollars 
annually. 

On  the  23d  of  September,  1795,  the  corporation  of  New 
York  released  to  the  corporation  of  the  First  Presbyterian 
Church  in  the  city  of  New  York,  the  sura  of  eighteen 
pounds,  fifteen  shillings,  part  of  the  rent  reserved  in  the 
deed  of  1766. 


134    Ecclesiastical  Laio  in  the  State  of  Neio   York. 

An  act  was  passed  on  the  17th  of  February,  1809,  en- 
titled, "  An  Act  for  the  separation  of  the  First  Presbyterian 
Church  of  the  city  of  New  York."  It  states  that  the  body 
possessed  three  places  of  public  worship,  and  that  a  separa- 
tion would  be  conducive  to  their  interest.  It  was  enacted, 
that  it  should  be  lawful  for  the  said  church  to  become  two 
or  more  distinct  and  separate  congregations,  and  to  incor- 
porate themselves  severally  under  the  act  to  provide  for  the 
incorporation  of,  etc.,  but  not  without  the  consent  of  the 
majority  of  the  pew-holders  and  stated  hearers.  They 
were  authorized  to  execute  all  proper  conveyances,  to  vest 
part  of  the  real  and  personal  property  in  trustees. 

The  approval  of  pew-holders  and  stated  hearers  was 
obtained,  and  a  division  took  place. 

It  appears  that  the  First  Presbyterian  Church  became 
again  incorporated,  and  by  the  same  name,  on  the  1st  of 
May,  1809,  under  the  General  Act  then  in  force  of  1800. 

The  members  of  what  was  commonly  known  as  the  Brick 
Church,  erected  on  the  site  adjoining  the  Vineyard,  became 
also  incorporated  at  the  same  time,  with  the  title  of  "  The 
Corporation  of  the  Brick  Presbyterian  Church,  in  the  city 
of  New  York."  And  by  an  indenture  of  the  29th  of  May, 
1809,  the  premises  were  conveyed  by  the  trustees  of  the 
First  Presbyterian  Church  to  the  trustees  of  the  Brick 
Church. 

The  third  of  the  churches  mentioned,  appears  to  have 
been  what  was  known  as  the  Rutgers  Street  Church. 

In  the  year  1837,  negotiations  were  had  for  the  sale  and 
surrender  to  the  corporation  of  New  York,  of  the  lease  held 
by  the  Brick  Church.  Application  Avas  made  to  Vice-Chan- 
cellor  McCoun  for  his  approval,  under  the  statute.  He 
considered  that  a  conditional  order  could  be  made  without 
an  actual  contract  being  entered  into  with  any  intended 
purchaser.  The  Court  could  approve  and  confirm  a  sale  on 
the  terras  suggested,  by  a  subsequent  order. 

Nor  was  it  a  decisive  objection  that  the  church  had  not 
selected  a  new  site  for  their  edifice. 

The  objections  also  of  pew-holders,  could  not  avail  against 


The  Presbyterian  Church.  135 

the  application.  The  order  could  he  made  without  prejudice 
to  the  legal  rights  of  pew-holders  in  the  new  huilding. 

But  the  special  character  of  the  deeds  of  transfer  to  the 
vault-holders,  gave  them  an  interest  in  the  land,  and  not 
merely  a  qualified  privilege  to  construct  a  vault.  The  en- 
joyment was  restricted  to  below  the  surface.  There  could 
be  no  building  above  ground.     The  petition  was  dismissed. 

In  1854,  the  opinion  of  Judge  Bronson,  Mr.  Charles 
O'Connor,  and  Mr.  George  Wood  was  taken,  and  they  con- 
curred in  holding,  that  the  premises  could  be  sold  for  any 
purposes  which  were  of  a  public  nature,  such  as  a  mint, 
post-office,  or  court-house.  The  uses  for  which  an  aliena- 
tion was  prohibited  were  fvivate,  as  well  as  secular  uses. 

In  1856  the  property  was  sold  by  the  church  to  private 
individuals.  The  approval  of  the  Supreme  Court  was  ob- 
tained for  a  sale,  subject  to  the  restrictions  in  the  grant,  in 
February,    1853. 

The  case  of  The  People  v.  Wood  and  others,  commission- 
ers of  the  sinking  fund,  was,  in  the  course  of  the  proceed- 
ings, brought  before  Mr.  Justice  Duer  and  the  present  writ- 
er.    Some  points  of  importance  were  agreed  upon. 

That  although  the  commissioners  of  the  sinking  fund 
were  entitled  to  the  rent  reserved  in  the  grant  to  the 
church,  this  had  not  carried  any  right  of  property,  or  other 
right  than  perhaps  an  action  for  breach  of  covenant  to  pay 
rent.  The  right  to  reenter  for  breach  of  the  covenant  not 
to  alien  for  certain  purposes,  did  not  pass  by  a  grant  of  the 
rent.  The  title  —  the  possibility  of  reverter,  if  it  might  be 
so  termed  —  remained  iji  the  corporation.  But  the  assent 
of  the  Commissioners  of  the  sinking  fund  was  highly  desir- 
able if  not  essential. 

The  cause  did  not  come  to  a  decision,  in  consequence  of 
the  point  being  started,  that  the  assent  of  one  board  was 
passed  in  one  year,  and  of  the  other  in  a  succeeding  year. 
The  Supreme  Court  subsequently  held  this  to  be  illegal. 

The  sale  was  finally  consummated.  The  church  conveyed 
subject  to  the  covenants.  The  corporation  released  and 
confirmed  to  the  purchaser,  and  the  commissioners  of  the 


136    Ecclesiastical  Law  in  the  State  of  New   York. 

sinking  fund  agreed  to  and  ratified  it.     The  assent  of  the 
vault-holders  was  also  obtained. 

Act  of  1867.  A  General  Act  was  passed  on  the  30th  of 
March,  1867  (Laws,  chap.  206),  by  which  the  Presbytery 
of  New  York  (of  which  the  Reverend  John  M.  Krebs  is 
stated  clerk),  in  connection  with  the  General  Assembly  of 
the  Presbyterian  Church  in  the  United  States  of  America, 
having  designated  from  its  membership  the  following  per- 
sons, namely,  John  M.  Krebs,  etc.,  etc.,  citizens  of  the 
United  States,  to  be  trustees  in  their  behalf,  the  said 
trustees  and  their  successors  to  be  from  time  to  time  ap- 
pointed by  said  Presbytery,  are  hereby  created  a  body  politic 
and  corporate  by  the  name  of  "  The  Trustees  of  the  Presby- 
tery of  New  York."     (§  1.) 

The  said  Presbytery  shall,  in  law,  be  capable  of  taking 
for  religious  and  charitable  purposes,  by  gift,  devise,  be- 
quest, grant,  or  purchase,  and  of  holding,  conveying,  and 
otherwise  disposing  of  the  same  from  time  to  time,  all  real 
and  personal  estate  now  held  for  the  benefit  of  the  said 
Presb}i;ery,  or  which  hath  been  or  may  hereafter,  for  the 
purposes  of  the  said  Presbytery,  used  in  the  promotion 
of  its  charitable  or  religious  purposes,  be  given,  devised, 
bequeathed,  or  granted  to  the  said  corporation  by  their 
name,  or  to  the  said  Presbytery,  or  for  the  charitable  and 
religious  uses  thereof,  or  which  may  in  any  manner  have 
accrued,  or  shall  accrue  from  the  interest,  income,  or  use 
of  such  real  or  personal  estate.  Provided,  that  the  yearly 
income  received  from  the  property  of  the  said  corporation 
shall  not  exceed  ten  thousand  dollars.     (Ibid.  §  2.) 

The  management  and  disposal  of  the  affairs  and  jjroperty 
of  the  said  corporation  shall  be  in  the  hands  of  the  said 
trustees  and  their  successors  in  office  from  time  to  time ; 
and  which  trustees  shall  hold  their  offices  at  the  pleasure 
of  the  said  Presbytery ;  and  all  vacancies  shall  be  filled  by 
them.     (Ibid.  §  3.) 

The  said  corporation  shall  possess  the  general  powers, 
rights,  and  privileges,  and  be  subject  to  the  liabilities  and 
provisions  contained  in  the  18th  chapter  of  the  first  part 


The  Presbyterian  Church.  137 

of  the  Revised  Statutes,  so  far  as  the  same  are  applicable ; 
and  also  subject  to  the  provisions  of  chapter  360  of  the 
Laws  of  1860.     (Ibid.  §  4.) 

The  last-mentioned  act  restricts  the  power  to  devise  to 
one  half  the  person's  property  in  certain  cases. 


CHAPTER  VII. 

THE   FRENCH   CHURCH. 

§  1.  By  an  act  of  the  19th  June,  170.3,  the  ministers  and 
eklers  for  the  time  being,  of  the  French  Protestant  Church 
in  the  city  of  New  York,  were  authorized  to  buikl  a  larger 
church. 

The  act  enabled  them  to  sell  the  church  and  ground 
occupied  by  them  in  Petticoat  Lane.  The  proceeds  were  to 
be  applied  to  the  purchase  of  a  larger  piece  of  ground 
within  the  city,  and  to  erect  a  church  and  dwelling-house 
for  a  minister. 

The  habendum  was,  "  To  have,  hold,  and  use  for  the  use 
and  interest  aforesaid,  by  the  name  of  the  Minister  and 
Elders  of  the  French  Protestant  Church  in  the  city  of  New 
York,  to  them  and  their  successors  forever." 

The  fourth  section  authorized  them  to  collect,  from 
among  the  members  of  the  congregation,  the  sums  required 
for  the  maintenance  and  reparation  of  the  church,  dwelling- 
house,  and  other  things  appertaining  thereto.  But  no  one 
was  compelled  to  contribute. 


CHAPTER  VIII. 

THE   LUTHEKAN    CHURCH. 

As  early  as  1673,  certain  members  of  tlie  Lutheran 
Church  petitioned  the  Governor  (Anthony  Colve),  in  their 
own,  and  in  the  name  of  the  congregation  of  the  Augs- 
burg Confession  at  William staat  (Albany),  for  the  free 
exercise  of  their  religious  worshij).  The  ijetition  was 
granted,  on  condition  of  their  conducting  themselves  quietly, 
without  giving  offense  to  the  congregation  of  the  Reformed 
Religion,  which  is  the  State  Church.^ 

In  Lieutenant  Governor  Colden's  letter  to  the  Board  of 
Trade,  of  December,  1763,  he  adverts  to  the  ftivor  felt 
towards  the  Lutheran  congregations,  and  their  efforts  to 
obtain  a  charter  of  incorporation  in  1759.  He  states  the 
Council  had  agreed  to  grant  it,  but  Governor  Delancy,  find- 
ing many  similar  applications  from  other  dissenting  congre- 
gations, opposed  it  until  the  views  of  the  Lords  of  Trade 
were  ascertained.  Such  applications  had  been  renewed,  and 
were  also  submitted. 

The  edifice  was,  it  appears,  at  first  without  the  gate,  but 
in  a  petition  of  the  church  (about  1684,  as  I  judge),  it  is 
stated,  that  they  had  been  obliged  by  Governor  Colve  to  tear 
the  edifice  down.  They  had  got  a  patent  for  a  piece  of 
ground  within  the  gate,  which  was  mislaid.'-^ 

The  edifice  long  remained  on  the  corner  of  Broadway  and 
Rector  Street. 

In  the  case  of  Knistern  v.  The  Lutheran  Churches  of  St. 
Johns  and  St.  Peters  (1  Sandf.  Ch.  Rep.  440),  the  history 
of  the  Lutheran  Churches  in  this  State,  and  the  statement 

1  Colonial  Documents,  vol.  ii.  p.  617. 

2  Documentary  Bistort/  of  New  York,  vol.  iii.  p.  484. 


140    Ecclesiastical  Law  in  the  State  of  New   York. 

of  the  peculiar  dogmas  of  faith  absohitely  held,  are  to  be 
found  at  length.  It  is  shown  that  the  great  formulary  is  the 
Augsburg  Confession  of  Faith. 

The  Lutheran  missionary,  Dr.  Muhlenbergh,  writes  in 
1750,  that  the  Lutheran  Church  in  the  city  of  New  York, 
had  been  built  and  dedicated  with  their  own  mites  and 
friendly  aid  from  Europe,  for  an  Evangelical  Lutheran 
congregation,  according  to  the  unaltered  Augsburg  Con- 
fession.    (1  Sandf.  Ch.  Rep.  521,  note.) 

In  Miller  v.  Gable  (2  Denio,  492),  the  doctrines  of  the 
Lutheran  and  Calvinistic  Churches  are  also  discussed,  with 
historical  notices  of  the  churches  in  this  city. 


CHAPTER  IX. 

THE    ROMAN   CATHOLIC    CHURCH. 

§  1.  The  proceedings  in  the  Colony  in  respect  to  Roman 
Catholics  are  very  striking*.  Robert  Livingston,  in  a  letter 
to  Governor  Fletcher  of  the  14th  of  February,  1695,  speaks 
of  the  generosity  of  the  people  to  a  papistical  governor 
who  never  did,  or  meant  them  good,  and  of  their  neglect 
of  one  of  their  own  religion  with  whom  Heaven  had  blessed 
them.i 

In  1696,  a  list  of  the  Roman  Catholics  and  reputed  Papists 
in  New  York,  was  transmitted  to  England,  with  a  statement 
that  they  had  all  been  disarmed.  The  Mayor,  by  command 
of  the  Governor,  made  a  return  of  all  in  the  city,  amounting 
to  ten. 2 

The  instructions  to  the  Earl  of  Bellemont  of  1667,  di- 
rected him  to  permit  liberty  of  conscience  to  all  persons 
except  Papists. 

On  the  31st  of  July,  1700,  an  act  was  passed  against 
Jesuits  and  Popish  priests.  It  enacted  that  every  Jesuit 
and  seminary  priest,  or  ecclesiastical  person,  made  or 
ordained  by  any  authority  derived  or  pretended  to  be  de- 
rived from  the  Pope  or  See  of  Rome,  then  residing  within 
the  province,  should  depart  therefrom  on  or  before  the  1st 
of  November  ensuing.  Any  such  person  preaching,  or 
teaching  others  to  say  popish  prayers,  masses,  granting  of 
absolution,  or  celebrating  or  using  any  other  of  the  Romish 
ceremonies  and  rites  of  worship,  shall  be  deemed  an  incen- 
diary and  disturber  of  the  public  peace,  and  an  enemy  to 
the  true  Christian  relisrion. 

Severe  penalties  were  imposed  upon  any  Jesuit  or  Popish 

^  Colonial  Documents,  vol.  iv.  p.  98.  2  JHct.  p.  166. 


142    Ecckbiastical  Lmv  in  the  State  of  New   York. 

priest  remaining  in  the  province.  An  exception  was  made 
as  to  shipwrecked  persons,  but  they  were  compelled  to  leave 
within  a  limited  time. 

§  2.  It  appears  that  St.  Peter's  Church  and  St.  Patrick's 
Cathedral  had  been  incorporated  jointly  under  the  Act  of 
1813.  An  act  was  passed  April  11,  1817  (Laws,  chap.  205), 
stating  this  fact,  and  the  desire  of  the  petitioners  that  dis- 
tinct acts  of  incorporation  should  be  passed  for  each  of 
them,  for  which  the  sanction  of  the  legislature  seemed 
necessary. 

It  was  enacted,  that  the  members  of  the  religious  soci- 
ety of  Roman  Catholics,  belonging  to  the  congregation  of 
St.  Peter's  Church,  in  the  city  of  New  York,  should  be, 
and  were  thereby  constituted  a  body  corporate  and  politic, 
by  the  name  and  description  of  "  The  Trustees  of  St. 
Peter's  Church  in  the  city  of  New  York." 

They  were  authorized  to  take  and  hold  all  that  portion 
of  the  joint  property  which  belonged  to  such  church, 
whether  given,  granted,  or  devised  to  the  same,  or  to  any 
other  person  for  its  use.  Also  to  take  and  hold  lauds  and 
tenements,  the  annual  income  of  which  should  not  exceed 
$10,000,  whether  the  same  be  by  gift,  grant,  or  bargain 
and  sale,  and  to  purchase  and  hold  personal  estate,  whether 
by  gift,  grant,  or  bargain  and  sale,  bequest,  or  otherwise  ; 
and  to  give,  grant,  devise,  lease,  or  dispose  of  as  they  should 
think  best  for  the  advantage  of  the  church.  Provided,  that 
nothing  should  authorize  them  to  sell  real  estate  without 
the  sanction  of  the  Chancellor,  according  to  the  eleventh 
section  of  the  act  "to  provide  for  the  Incorporation  of 
Religious  Societies." 

The  Roman  Catholic  Bishop  in  the  city  of  New  York,  for 
the  time  being,  was  to  be  ex  officio  the  president  of  the 
board  of  trustees  ;  but  in  case  of  his  death  or  absence,  the 
board  could  appoint  a  chairman  pro  tempore. 

The  trustees  were  to  be  nine  in  number.  Provision  was 
made  for  the  first  election,  and  division  into  classes,  holding 
for  one,  two,  and  three  years  respectively. 

The  elections  for  trustees  after  the  first  election,  were  to 


The  Roman  Catholic  Church.  143 

be  held  on  Easter-Monday  in  every  year,  between  the  hours 
of  eleven  o'clock  in  the  forenoon  and  three  o'clock  in  the 
afternoon,  by  ballot,  at  such  place  and  under  such  directions 
as  the  board  of  trustees,  or  a  majority  of  them,  should 
agree  upon ;  whereof  due  notice  was  to  be  given  three  Sun- 
days successively  in  said  church,  during  divine  service,  and 
immediately  preceding  such  election. 

Three  tr<istees  were  to  be  elected  at  such  election,  to 
supply  the  place  of  the  three  whose  term  expired. 

The  electors  were  to  possess  the  same  qualifications  as 
were  requisite  at  the  first  election.     These  were  :  — 

The  being  male  persons  of  full  age  belonging  to  the  said 
church,  being  pew-holders,  or  stated  hearers,  and  contrib- 
uting to  the  said  church  not  less  than  four  dollars  annually, 
in  quarterly  payments,  and  not  more  than  six  months  in 
arrear. 

It  was  made  the  duty  of  the  trustees  to  keep  a  book  to 
register  all  the  names  of  the  electors  so  qualified,  and  to 
produce  such  book  at  the  elections,  in  order  to  test  the 
qualifications  of  the  electors  in  case  the  same  should  be 
questioned. 

If  any  vacancy  in  the  office  of  trustee  should  happen  by 
resignation,  death,  or  otherwise,  the  remaining  trustees 
might  make  temporary  appointments  until  the  next  annual 
election,  which  appointments  shall  then  fill  such  vacancies 
to  the  end  that  no  elector  may  give  more  than  one  vote  in 
the  same  year,  except  he  is  a  trustee  and  votes  to  supply  a 
vacancy. 

Power  was  given  to  appoint  a  treasurer  and  clerk,  and 
to  elect  two  auditors  to  state  the  situation  of  the  funds. 

The  trustees  of  St.  Peter's  Church  were  made  jointly 
liable  with  the  trustees  of  St.  Patrick's  Cathedral,  for  the 
debts  which  the  trustees  of  St.  Peter's  had  before  con- 
tracted, and  the  property  and  revenue  of  each  of  the 
churches  was  to  remain  liable  for  the  liquidation  of  the 
same.  Annual  accounts  should  be  mutually  rendered,  and 
the  surplus  funds  be  so  applied. 

By  section  fifth,  it  was  made  lawful  for  the  trustees  of  St. 


144  Ecclesiastical  Law  in  the  State  of  New   York. 

Peter's,  at  the  call  of  any  two  of  such  trustees,  to  meet 
together  for  the  purpose  of  transacting  the  business  of  such 
society  ;  of  the  time  and  place  of  such  meeting,  notice  shall 
be  given  to  all  the  said  trustees,  at  least  one  day  before  such 
meeting,  except  in  cases  of  emergency.  If  five  of  the 
trustees  attend,  they  shall  form  a  quorum  or  board,  and 
shall  have  power,  by  a  majority  of  votes,  to  make,  ordain,  and 
establish  such  rules,  orders,  and  regulations  for  the  man- 
agement of  the  temporal  concerns  of  the  said  congregation, 
and  for  the  government  of  the  schools  attached  to  the  said 
church,  as  they  should  deem  proper.  Provided,  that  the 
same  be  not  repugnant  to  the  laws  or  constitution  of  this 
State  or  of  the  United  States.  Provided,  also,  that  the 
trustees  shall  not  enter  into  any  expenses  other  than  the 
ordinary  and  necessary  contingent  expenses  without  the  con- 
sent of  the  trustees  of  St.  Patrick's  Cathedral  in  the  city 
of  New  York,  until  the  final  extinguishment  of  the  debts 
of  the  church. 

By  the  seventh  section,  in  case  of  a  dissolution  by  reason 
of  any  non-user,  the  society  might  be  re-incorporated  under 
the  law  of  the  State,  and  all  the  property  should  vest  in  the 
new  corporation. 

By  the  eighth  section,  the  joint  incorporation  of  St. 
Peter's  Church  and  St.  Patrick's  Cathedral  was  dissolved. 
But  all  grants  or  gifts  made  for  the  benefit  of  St.  Peter's 
Church  in  the  city  of  New  York,  and  all  acts  of  the  legisla- 
ture for  the  benefit  thereof,  were  ratified  and  confirmed. 

An  act  was  passed  April  14,  1817  (Laws,  chap.  239), 
incorporating  separately  "  The  Trustees  of  St.  Patrick's 
Cathedral,  in  the  city  of  New  York."  Its  provisions  are 
the  same  as  the  Act  of  April  11,  just  cited. 

§  3.  By  an  act  of  April  3,  1821  (Laws,  chap.  237),  the 
act  as  to  the  congregation  of  St.  Peter's  Church,  of  April 
11,  1817,  was  amended  as  follows  :  From  and  after  the 
passing  of  this  act,  it  shall  be  the  duty  of  the  joint  treas- 
urer, for  the  time  being,  of  St.  Peter's  Church  and  St. 
Patrick's  Cathedral,  duly  appointed  under  the  by-laws  of 
such  corporations,  to  keep  a  book  to  register  all  the  names 


The  Roman  Cafholic  Church.  145 

of  electors  qualified  to  vote  at  elections  for  officers  under 
the  act  hereby  amended ;  and  it  shall  be  the  duty  of  the 
said  joint  treasurer  to  give  to  every  person  duly  qualified, 
a  certificate  of  such  fiict,  which  shall  bear  date  within  six 
months  prior  to  the  election,  and  shall  be  full  and  conclusive 
proof  of  the  qualifications  of  the  person  named  therein  to 
vote  at  such  elections. 

By  the  second  section,  a  penalty  was  imposed  for  refusing 
the  certificate  without  sufficient  and  legal  cause. 

"  And  whereas,  under  the  act  hereby  amended,  notice 
of  the  said  elections  is  required  to  be  given  in  the  church, 
and  during  divine  service ;  and  whereas  such  arrangement 
is  offensive,  and  disturbs  the  harmony  of  divine  worship, 
therefore  — 

"  Be  it  enacted,  that  the  notification  of  all  elections  under 
the  said  act  hereby  amended,  shall  be  in  writing,  signed  by 
the  Catholic  Bishop  for  the  time  being,  the  president  ex 
officio  of  the  board  of  trustees  of  said  church,  and  shall  be 
put  up  in  a  conspicuous  place  in  the  porch  of  the  said 
church,  for  three  Sundays  successively  immediately  preced- 
ing such  election." 

§  4.  We  may  here  notice  the  Act  of  April  9,  1855 
(Laws,  chap.  230) :  "  An  Act  in  relation  to  conveyances  and 
devises  of  estates  for  religious  purposes."  It  was  enacted, 
that  no  interest  in  property,  real  or  personal,  should  be  con- 
veyed, or  descend  to  any  ecclesiastic  or  his  successor ;  that 
none  but  legally  incorporated  religious  societies  within  this 
State  could  take  grants,  or  devises  of  real  property,  dedi- 
cated or  appropriated,  or  intended  to  be  dedicated  or  appro- 
priated, to  the  purposes  of  religious  worship. 

Other  provisions  were  made  as  to  property  theretofore 
given  to  any  ecclesiastic  for  such  purposes,  and  its  vesting 
in  the  church  or  congregation  when  incorporated,  provided 
it  became  incorporated  before  the  death  of  the  person  in 
whom  it  was  vested. 

There  are  other  provisions  of  this  statute  not  deemed 
necessary  to  be  cited,  as  the  act  itself  was  repealed  by  a 
statute  of  April  8,  1862.     (Laws,  chap.  147.) 

10 


146  Ecclesiastical  Law  in  the  State  of  Neiv   York. 

An  important  statute  was  passed  on  the  25th  of  March, 
1863.  It  is  entitled  "An  Act  supplementary  to  the  Act 
entitled  '  An  Act  to  provide  for  the  Incorporation  of  Relig- 
ious Societies,'  passed  April  5,  1813." 

§  5.  Act  of  1863.  (1.)  "  It  shall  be  lawful  for  any  Roman 
Catholic  church  or  congregation,  now  or  hereafter  existing 
in  this  State,  to  be  incoi'porated  according  to  the  provisions 
of  this  act."     (§  1  of  an  act  passed  March  25,  1863.) 

(2.)  "  The  Roman  Catholic  Archbishop  or  Bishop  of  the 
Diocese  in  which  such  church  is  erected,  or  intended  so  to 
be,  the  Vicar-General  of  such  Diocese,  and  the  pastor  of 
such  church  for  the  time  being,  respectively,  or  a  majority 
of  them,  may  select  aud  appoint  two  laymen,  members  of 
such  church,  and  may,  together  with  such  laymen,  sign  a 
certificate  in  duplicate,  showing-  the  name  or  title  by  which 
they  and  their  successors  shall  be  known  and  distinguished 
as  a  body  corporate,  by  virtue  of  this  act ;  which  certificate 
shall  be  duly  acknowledged  or  proved  in  the  same  manner 
as  conveyances  of  real  estate."     (Ibid.) 

(3.)  "  One  of  such  certificates  shall  be  filed  in  the  ofiice 
of  the  Secretary  of  State,  aud  the  other  in  the  office  of  the 
Clerk  of  the  County  in  which  such  church  may  be  erected 
or  intended  so  to  be ;  and  thereupon  such  church  or  con- 
gregation shall  be  a  body  corporate,  by  the  name  or  title 
expressed  in  such  certificate,  and  the  persons  signing  the 
same  shall  be  the  trustees  thereof."     (Ibid.) 

(4.)  "  The  successors  of  any  such  Archbishop,  Bishop, 
Vicar-General,  or  Pastor,  respectively,  for  the  time  being, 
shall  by  virtue  of  his  office,  be  the  trustee  of  such  church, 
in  place  of  his  pi'edecessor,  aud  such  laymen  shall  hold  their 
office  respectively  for  one  year,  and  whenever  the  office  of 
any  such  layman  shall  become  vacant  by  death,  removal, 
resignation,  or  otherwise,  his  successor  shall  be  appointed 
in  the  same  manner  as  herein  provided  for  his  original 
selection."     (Ibid.) 

(5.)  "  The  trustees  of  every  such  church  or  congregation, 
and  their  successors,  shall  have  all  the  powers  and  authority 
granted  to  the   trustees  of  any  church,  congregation,   or 


The  Roman   Catholic   Clmrch.  147 

society,  by  the  fourth  section  of  an  act  entitled,  '  An  Act 
to  provide  for  the  Incorporation  of  Reh'gious  Societies,' 
passed  April  5,  1813  ;  and  shall  also  have  power  to  fix  or 
ascertain  the  salary  to  he  paid  to  any  pastor  or  assistant 
pastor  of  such  church."     (Ibid.  §  2.) 

(6.)  "  But  the  whole  real  and  personal  estate  of  any  such 
church,  exclusive  of  the  church  edifice,  parsonage,  and 
school-houses,  together  with  the  land  on  which  the  same 
may  be  erected,  and  burying-places,  shall  not  exceed  the 
annual  value  of  income  of  three  thousand  dollars."    (Ibid.) 

(7.)  "  Nothing  herein  contained  shall  be  held  or  taken  to 
repeal,  alter,  or  impair  the  effect  of  chap.  360  of  the  laws 
of  1860."  [That  law  of  1860  prohibited  a  devise  or  bequest 
by  a  person  having  a  husband,  or  wife,  child,  or  parent,  to 
any  benevolent,  charitable,  literary,  scientific,  religious,  or 
missionary  society  or  corporation,  in  trust  or  otherwise,  of 
more  than  one  half  part  of  his  or  her  estate,  after  the  pay- 
ment of  his  or  her  debts  ;  and  such  devise  or  bequest  shall 
be  valid  to  the  extent  of  one  half  and  no  more.     (§  1.)  ] 

(8.)  All  laws  and  parts  of  laws  inconsistent  with  such  act 
were  repealed.     (§  2.) 

§  6.  The  trustees  of  any  church  incorporated  under  this 
act,  are  required  to  exhibit  upon  oath  to  the  Supreme  Court 
in  the  judicial  district  in  which  such  church  is  situated,  and 
in  eveiy  three  years,  an  inventory  of  all  the  estate,  real  and 
personal,  belonging  to  such  church,  and  of  the  annual  in- 
come thereof;  which  inventory  shall  be  filed  in  the  office  of 
the  Clerk  of  the  county  in  which  such  building  is  situated. 
(Ibid.  §  3.) 

§  7.  Whenever  any  church  incorporated  under  this  act 
shall  be  dissolved  by  reason  of  any  non-user,  or  neglect  to 
use  any  of  the  powers  necessary  for  its  preservation,  or 
otherwise,  the  same  may  be  re-incorporated  in  the  mode 
prescribed  in  this  act,  within  six  years  from  the  date  of 
such  dissolution ;  and  thereupon  all  the  property,  real  and 
personal,  belonging  to  such  dissolved  corporation  at  the 
time  of  its  dissolution,  shall  vest  in  such  new  corporation. 
(Ibid.  §  4.) 


148    Ecclesiastical  Law  in  the  State  of  New   YorJc. 

§  8.  All  conveyances  to  any  church  incorporated  under 
this  act,  of  any  real  estate  heretofore  approi)riated  to  the 
use  of  such  church  or  the  congregation  thereof,  or  intended 
so  to  be,  are  duly  confirmed  and  declared  valid. 

In  the  case  of  McCaughall  v.  Ryan  (27  Barbour's  Rep. 
376),  there  was  a  devise  made  in  1862,  as  follows :  "  I  give, 
devise,  and  bequeath  all  the  rest  and  residue  of  my  personal 
estate,  and  all  my  real  estate,  which  I  shall  own  or  be  pos- 
sessed of  at  the  time  of  my  death,  unto  the  Right  Rev. 
Bishop  Hughes,  of  the  city  of  New  York,  in  trust  for  the 
use  and  benefit  of  the  Roman  Catholic  Church  of  the  State 
of  New  York." 

It  was  held  to  be  an  attempt  to  create  an  express  trust 
more  extensive  than  what  was  permitted  by  the  Revised 
Statutes,  and  was  void. 


CHAPTER  X. 

THE   REFORMED   PRESBYTERIAN   CHURCH. 

§  1.  Ad  of  1860.  (1.)  The  members  of  the  religious  so- 
ciety now  belonging,  or  who  at  any  time  hereafter  shall 
belong,  to  the  congregation  of  the  Reformed  Presbyterian 
Church,  in  the  city  of  New  York,  from  and  immediately 
after  the  passage  of  this  act  shall  be,  and  are  hereby  consti- 
tuted, a  body  corporate  and  politic,  in  fact  and  in  law  by  the 
name,  style,  and  description  of  "  The  Consistory  of  the 
Reformed  Presbyterian  Church  in  the  city  of  New  York," 
and  the  said  consistory  shall  be  the  present  minister,  eld- 
ers, and  deacons  of  the  said  congregation,  for  the  time 
being,  and  their  successors."  (Act  of  March  24,  1860, 
Laws,  chap.  98.) 

(2.)  They  shall,  by  and  in  their  name  aforesaid,  have,  hold, 
enjoy  and  possess  all  and  singular,  the  rights,  liberties,  priv- 
ileges, and  powers  as  trustees,  and  be  subject  to  the  like  du- 
ties as  are  mentioned  and  described  in  and  by  the  act  enti- 
tled, "  An  Act  to  provide  for  the  Incorporation  of  Religious 
Societies,"  passed  April  5,  1813,  and  to  hold  property  in 
the  manner  particularly  mentioned  in  and  by  the  same  act ; 
the  rents,  issues,  and  profits  whereof,  shall  not  annually 
exceed  the  whole  sura  of  five  thousand  dollars.     (Ibid.) 

(3.)  "  Provided,  that  they  shall  not  at  any  time  determine 
or  alter  the  minister's  salary,  or  the  annual  rent  of  pews  in 
the  church,  but  that  the  same  shall  always  be  subject  to  the 
vote  of  the  congregation,  anything  in  the  said  act  to  the 
contrary  notwithstanding."     (Ibid.) 

§  2.  (1.)  The  minister  or  ministers,  and  elders  and  dea- 
cons, and  if  during  any  time  there  shall  be  no  minister, 
then  the  elders  and  deacons  during  such  time,  of  every 


150    Ecclesiastical  Laio  in  the  State  of  New  York. 

Reformed  Presbyterian  church  or  congregation,  elected 
according  to  the  rules,  constitution,  and  usages  of  the 
Reformed  Presbyterian  Church,  now  or  hereafter  to  be 
established  within  this  State,  shall  be  the  trustees  for  such 
church  or  congregation.  (§  1  of  Act  of  April  12,  1822, 
Laws,  chap.  187.) 

(2.)  It  shall  be  lawful  for  said  trustees,  if  not  already 
incorporated,  to  assemble  together  as  soon  as  they  shall 
deem  it  convenient,  and  execute,  under  their  hands  and  seals, 
a  certificate  stating  the  name  and  title  by  which  they,  and 
their  successors  in  office  forever,  by  a  body  corporate,  by 
virtue  of  this  act,  shall  be  known  and  distinguished.  (Ibid.) 
(3.)  Such  certificate  shall  be  duly  acknowledged  or  proved 
in  the  manner  directed  by  the  "  Act  to  provide  for  the  In- 
corporation of  Religious  Societies,"  with  regard  to  the  cer- 
tificates of  other  religious  societies,  incorporated  under  the 
said  act,  and  shall  thereupon  be  recorded  by  the  Clerk  of  the 
County  in  which  such  church  or  congregation  is  established, 
in  the  book  by  him  provided  according  to  the  directions  of 
the  aforesaid  act.     (Ibid.) 

See,  as  to  the  officers  who  may  take  the  acknowledgment 
and  as  to  recording  in  the  Register's  office,  when  the  church 
is  in  the  city  of  New  York,  ante,  chap.  4,  §  8. 

(4.)  Such  trustees  and  their  successors  shall  thereupon, 
by  virtue  of  this  act,  be  a  body  corporate  by  the  name  or 
title  expressed  in  such  certificate,  and  such  trustees  and 
their  successors  so  elected  and  incorporated  by  and  in  such 
name  or  title,  shall  have,  hold,  possess  and  enjoy,  all  and 
singular,  the  rights,  liberties,  powers,  and  privileges,  and  be 
subject  to  all  the  duties  and  limitations  of  trustees,  men- 
tioned and  prescribed  in  and  by  the  act  to  which  this  act  is 
supplementary,  and  may  hold  propei-ty  in  the  manner  and  to 
the  amount  prescribed  with  regard  to  religious  societies 
under  that  act.     (Ibid.) 

(5.)  Provided,  That  they  shall  not  at  any  time  determine 
or  alter  the  minister's  salary,  or  the  annual  rent  of  pews, 
but  that  the  same  shall  be  always  subject  to  the  vote  of  the 
congregation,  anything  in  this  act,  or  in  the  act  to  which 


The  Reformed  Presbyterian  Church.  151 

this  is  supplementary,  to  the  contrary  notwithstanding'. 
(Ibid.) 

§  3.  (1.)  "  When  any  Reformed  Presbyterian  church  or 
cong-reg-ation  shall,  by  resolution  duly  passed  at  a  meeting 
of  such  church  or  congregation,  determine  that  the  deacons 
of  such  church  or  congregation  shall  be  the  trustees  of 
such  church  or  congregation  alone,  then  it  shall  be  lawful 
for  the  deacons  of  every  such  church  or  congregation  now 
or  hereafter  to  be  established  in  this  State,  to  be  the  trust- 
ees of  every  such  church  or  congregation  ;  provided,  that 
they  shall  have  been  elected  according  to  the  rules,  consti- 
tution, and  usages  of  the  Reformed  Presbyterian  Church, 
and  are  actually  engaged  in  the  exercise  of  their  office  in 
said  church  or  congregation."  (§  1  of  Act  of  April  7,  1866, 
Laws,  chap.  447.) 

(2.)  "  And  it  shall  be  lawful  for  the  said  trustees,  if  not 
already  incorporated,  to  assemble  together,  and  proceed  to 
incorporate  themselves  in  the  mode  prescribed  in  and  by 
the  act  entitled  '  An  Act  for  the  Incorporation  of  Religious 
Societies,'  passed  April  5,  1813,  and  an  act  entitled  '  An  Act 
supplementary  to  an  Act  entitled  "  An  Act  to  provide  for  the 
Incorporation  of  Religious  Societies,  passed  April  5,  1813," 
passed  April  12,  1822.' "     (Ibid.) 

This  act  of  April  12,  1822,  is  cited,  ante,  §  2. 


CHAPTER  XL 

THE    ASSOCIATE   KEFOEMED   CHURCH   OF   NEW  TOEK. 

§  1.  The  Associate  Reformed  Church  in  this  country 
originated  in  the  union  of  two  bodies  of  Scotch  Presbyteri- 
ans known  as  the  Associate  and  the  Reformed  Presbyterian 
Churches.  This  union  was  accomplished  in  1782.  In  1855 
there  was  a  general  Synod  of  the  Presbyteries  in  the  West- 
ern States,  including  three  particular  Synods  at  the  West, 
and  a  separate  Synod  of  New  York.  In  that  year,  the 
Synod  of  New  York  united  as  a  particular  Synod  with  the 
general  Synod  of  the  West.  This  then  became  the  supreme, 
judicial,  and  legislative  body  of  the  Associate  Reformed 
Church. 

By  an  act  of  the  legislature  of  1836  (p.  776),  "  the  trust- 
ees of  the  Theological  Seminary  of  the  Associate  Reformed 
Church,"  were  created  a  body  corporate,  and  the  election 
of  the  trustees  of  such  corporation  was  vested  in  "  The 
Associate  Reformed  Synod  of  New  York  at  their  annual 
meeting." 

This  Synod  was  a  particular  Synod  composed  of  several 
Presbyteries.  Presl)yteries  consist  of  all  the  ministers 
within  a  certain  district,  each  accompanied  by  a  ruling 
elder  commissioned  by  the  Sessions. 

The  Associate  Reformed  Church  was  a  Presbyterian 
Church,  adhering  to  a  government  by  ministers  of  equal 
grades,  and  ruling  elders  chosen  by  the  congregation. 

The  union  which  was  effected  in  1782,  was  not  concurred 
in  by  all  the  members  of  the  two  churches.  Many  pre- 
served a  distinct  organization  as  the  Associate  Church. 
Negotiatious  for  that  purpose  resulted  in  a  union  of  these 
churches,  and  the  formation  of  a  General  Assembly  em- 


The  Associate  Reformed  Church  of  Neiu   York.     153 

bracing-   tlie   particular   Synods   and     Presbyteries   of    the 
Associate  and  Associate  Reformed  Churches. 

Upon  a  quo  warranto,  to  test  who  were  properly  chosen 
trustees  of  the  Seminary,  it  appeared  that  the  relators  were 
chosen  by  a  body  of  persons  undoubtedly  members  of  the 
church  before  the  last  union,  but  who  acceded  to  it,  and  the 
defendants  were  elected  by  a  body  who  dissented  from  such 
union. 

It  was  held,  that  plaintiffs  had  the  better  title.  That 
such  a  union  as  had  been  effected  had  not  destroyed  the 
church  membership,  or  extinguished  the  church  office  in 
the  church  which  still  subsisted.  The  separate  organiza- 
tion was  retained.  Particular  synods  were  not  merged  in 
the  united  church.  (Mr.  Justice  Emmott  in  The  People  ex 
rel.  Geani  v.  Farrington,  22  N.  Y.  Rep.  294.) 

The  case  of  The  Associate  Reformed  Church  v.  The 
Trustees  of  the  Theological  Seminary  (3  Green's  Ch.  Rep. 
of  New  Jersey,  p.  79),  was  cited  and  distinguished.  The 
General  Synod  of  the  Associate  Reformed  Church  in  1822 
formed  a  union  with  the  General  Assembly  of  the  Presby- 
terian Church,  by  which  it  surrendered  its  separate  exist- 
ence and  became  merged  in  the  latter  body.  This  involved 
the  transfer  to  the  latter  of  the  library  and  funds  of  the 
seminary  which  was  under  its  charge,  and  was  not  then 
incorporated.  A  considerable  portion  of  the  Associate 
Reformed  Church  refused  the  connection  with  the  Presby- 
terian Church,  and  adhered  to  their  peculiar  tenets  and 
distinct  organization.  They  proceeded  by  bill  in  the  church 
name  against  the  Princeton  Seminary,  to  which  the  prop- 
erty had  been  transferred.  The  Chancellor  held,  that  the 
merger  in  the  Presbyterian  Church  of  the  majority,  did  not 
extinguish  the  body  they  had  left,  if  there  remained  any 
constituents  to  continue  that  body.  It  was  a  breach  of 
trust  to  devote  the  property  which  had  been  given  for  the 
supply  of  the  ministry  of  the  Associate  Reformed  Church 
to  the  use  of  another  denomination.  (See  as  to  this,  in  our 
State,  jjost,  chap.  22,  §  4.) 


CHAPTER  XII. 

THE   METHODIST   EPISCOPAL   CHURCH. 

§  1.  The  corporation  of  the  Methodist  Episcopal  Church 
in  the  city  of  New  York,  shall  be,  and  are  hereby  author- 
ized to  continue  to  elect  nine  trustees  of  the  said  corpora- 
tion, in  the  same  manner  as  if  that  number  of  trustees  had 
originally  been  named  in  the  certificate  of  incorporation ; 
and  such  trustees  shall  be  classed,  or  continue  to  be  classed, 
in  the  manner  prescribed  by  the  sixth  section  of  this  act. 
(§  14  of  Act  of  April  5, 1813,  chap.  60.) 

§  2.  Act  of  April  5,  1867.  By  an  act  of  the  5th  of  April, 
1867  (Laws,  chap.  265),  the  presiding  elder  and  a  majority 
of  the  district  stewards,  appointed,  according  to  the  disci- 
pline of  the  Methodist  Episcopal  Church,  residing  in  any 
ecclesiastical  district  in  this  State,  erected  by  an  annual 
conference  of  said  Church  as  a  presiding  elders  district, 
may  make,  sign,  and  acknowledge,  before  some  officer  com- 
petent to  take  the  acknowledgment  of  deeds,  and  file  in  the 
office  of  the  Clerk  of  any  county  in  such  district,  and  a  du- 
plicate thereof  in  the  office  of  Secretary  of  State,  a  certifi- 
cate in  writing  in  which  shall  be  stated  the  corporate  name 
of  such  corporation ;  the  names,  residences,  and  official 
relation  to  the  district  of  the  persons  signing  such  certifi- 
cate ;  the  number  of  trustees  not  less  than  three,  nor  more 
than  nine,  who  shall  manage  the  property  and  aflFairs  of 
said  corporation  for  the  first  year,  and  their  names  ;  and  in 
which  certificate  it  shall  be  further  stated  in  substance,  that 
the  object  of  such  corporation  is  to  secure  the  benefits  of 
this  act.  (§  1  of  Act  of  April  5,  1867,  Laws,  chap.  265. 
"  An  Act  to  authorize  the  formation  of  corporations  to 
secure  parsonages  and  other  property  for  the  use  of  presid- 
ing elders  of  the  Methodist  Episcopal  Church.") 


The  Methodist  Eimeopal  Church.  155 

§  3.  When  such  certificate  shall  be  filed  as  aforesaid,  the 
persons  who  shall  have  made,  signed,  and  acknowledged  the 
same,  and  their  successors,  shall  be  and  become  a  body  poli- 
tic and  corporate,  by  the  name  stated  in  such  certificate ; 
and  such  corporation  shall  have  succession,  and  possess  the 
general  powers  conferred  on  corporations  by  the  18th  chap- 
ter of  the  first  part  of  the  Revised  Statutes  of  this  State ; 
and  shall  also  have  power  to  take  by  gift,  grant  or  purchase, 
any  estate,  real  or  personal,  for  the  use  of,  and  as  a  resi- 
dence for  the  presiding  elder,  for  the  time  being,  of  such 
district,  and  his  successors  in  office ;  and  from  time  to  time, 
to  sell  and  convey  the  same,  and  reinvest  the  proceeds 
thereof  for  a  like  purpose,  as  the  trustees  of  such  corpora- 
tion, with  the  approval  of  the  annual  conference  having 
jurisdiction  over  the  district,  may  direct ;  but  the  annual 
income  or  value  of  such  real  and  personal  estate  shall  not 
exceed  five  thousand  dollars.     (Ibid.  §  2.) 

§  4.  Any  real  estate  heretofore  conveyed  for  the  use  of,  or 
as  a  residence  for  a  presiding  elder  of  any  such  district  and 
his  successors  in  office,  may  be  conveyed  by  the  trustees 
holding  the  title  thereof,  to  a  corporation  formed  as 
aforesaid,  for  the  district  in  which  such  estate  is  situated ; 
whereupon  the  title  thereto  shall  vest  in  such  corporation, 
for  the  purposes  defined  by  this  act.     (Ibid.  §  3.) 

§  5.  The  district  stewards  of  any  presiding  elders  dis- 
trict, at  their  annual  meeting,  may  appoint,  from  time  to 
time,  trustees  for  any  such  corporation  within  their  district 
to  supply  the  places  of  those  whose  terms  shall  expire,  and 
to  fill  any  vacancies  in  the  number  of  such  trustees ;  and 
trustees  of  any  such  corporation  shall  respectively  hold 
their  offices  for  one  year,  and  until  others  are  appointed  in 
their  places.     (Ibid.  §  4.) 

In  The  People  ex  rel.  Goffin  v.  Steele  and  others,  trust- 
ees (2  Barb.  Superior  Coui-t  Rep.  397),  members  of  three 
Methodist  churches  had  become  incorporated  under  the 
General  Act,  and  built  a  meeting-house  and  parsonage  in 
1839.  They  were  admitted  into  connection  with  other 
churches  of  the  denomination  by  the  presiding  elder  of  the 


156    Ecclesiastical  Law  in  the  State  of  New   York. 

district,  and  agreeable  to  their  discipline,  received  from  him 
a  preacher.  For  about  eight  years  they  received  annually 
from  the  Conference  a  preacher,  appointed  by  the  Bishop. 
In  1847,  their  preacher,  having  been  suspended  by  the 
authorities,  the  congregation  determined  to  stand  by  him. 
They  notified  the  Bishop  that  they  did  not  desire  a  preacher 
to  be  appointed  by  him ;  and  agreed  to  continue  the  former 
as  their  pastor. 

The  Bishop  appointed  the  relator  to  the  station.  He 
was  refused  admittance  into  the  church  by  the  trustees,  and 
a  mandamus  was  issued  and  return  made. 

The  facts  were  made  out  of  their  professing  to  be  mem- 
bers of  the  Methodist  Church,  and  subject  to  its  discipline 
and  order.     It  had  no  independent  organization. 

The  cardinal  rule  of  the  itinerancy  of  preachers  was 
stated  and  dwelt  upon,  and  the  equally  settled  rule  that  the 
appointment  of  preachers  to  the  stations  vested  in  the 
Bishop.  The  opinion  of  Judge  Edmonds  is  very  full  and 
interesting  upon  these  points. 

The  question  of  the  propriety  of  the  writ  of  mandamus 
in  such  a  case  was  carefully  examined.  A  peremptory  writ 
was  issued  in  favor  of  the  relator. 


CHAPTER  XIII. 

THE    QUAKERS. 

§  1.  All  deeds  or  declarations  of  trust  of  real  or  per- 
sonal estate,  heretofore  executed  and  delivered  to  any  person 
or  persons  in  trust,  or  for  the  use  and  benefit  of  any  meeting 
of  the  Religious  Society  of  Friends,  and  the  trusts  thereby 
created  or  declared,  shall  be  valid;  and  the  legal  estates 
may  be  transmitted,  and  the  trusts  so  created  or  declared 
may  be  continued  and  pursued  so  long  as  may  be  required 
for  the  purposes  of  the  trusts,  by  conveyances  from  the 
trustees  appointed  by  such  meeting,  and  by  conveyances  by 
them  to  others  appointed  in  like  manner,  or  otherwise, 
according  to  the  direction  of  such  meeting.  (§  1  of  Act 
of  April  17,  1839,  Laws,  chap.  184.) 

§  2.  (1.)  Trusts  of  real  or  personal  estate  for  the  benefit 
of  any  meeting  of  the  religious  Society  of  Friends  may  be 
hereafter  created  for  the  use  of  such  meeting,  according  to 
the  regulations  and  rules  of  discipline  of  said  society  ;  and 
the  legal  estate  of  any  property  so  held  in  trust,  shall  be 
vested  in  the  trustees  and  in  those  to  whom  the  said  prop- 
erty may  be  conveyed  in  trust  by  the  appointment  of  any 
such  meeting,  so  long  as  may  be  required  for  the  objects 
and  purposes  of  such  trusts.     (Ibid.  §  2.) 

(2.)  Nothing  contained  in  this  act  shall  be  so  construed 
as  to  impair  or  diminish  the  rights  of  any  person,  meeting, 
or  association  of  persons,  claiming  to  be  a  meeting  of  the 
religious  Society  of  Friends,  which  such  person,  or  meet- 
ings, or  association  of  persons,  claiming  to  be  a  meeting  as 
aforesaid,  hold  either  in  law  or  equity  to  or  in  any  real  or 
personal  estate,  held  in  trust  for  the  use  and  benefit  of  any 
meeting  of  the  said  religious  society,  at  the  yearly  meeting 
held  in  the  city  of  New  York,  in  the  month  of  May,  in  the 


158   Ecclesiastical  Laio  in  the  State  of  Nciv   York. 

year  of  our  Lord  one  thousaud  eight  hundred  and  twenty- 
eight.     (Ibid.) 

(3.)  No  such  real  or  personal  estate  shall  he  held  in  trust 
for  any  meeting  of  such  society,  the  annual  value  or  income 
of  which  shall  exceed  five  thousand  dollars.     (Ibid.) 


CHAPTER  XIV. 

THE    SHAKERS. 

§  1.  All  deeds  of  trust  in  relation  to  real  and  personal 
estate  executed  and  delivered  prior  to  the  first  day  of  Janu- 
ary, 1830,  to  any  person  in  trust  for  any  united  society  of 
the  people  commonly  called  Shakers,  shall  he  valid  and 
eifectual  to  vest  in  the  trustees  the  legal  estates  and  inter- 
ests to  be  conveyed  by  such  deeds,  to  and  for  the  uses  and 
purposes  declared  therein,  or  declared  by  any  declaration  of 
trust,  executed  by  such  trustees  in  the  same  manner  and  to 
the  same  eifect,  as  before  the  first  day  of  January,  1830. 

(2.)  And  such  legal  estates  and  trusts  may  be  continued 
so  long  as  may  be  required  for  the  purposes  of  the  trust  by 
conveyances  from  the  trustees  named  in  such  deeds,  to 
other  trustees  appointed  by  such  society,  and  by  convey- 
ances from  them  to  others  appointed  in  like  manner.  (§  1 
of  Act  of  April  15,  1839,  Laws,  chap.  174.) 

By  an  Act  of  April  1849  (chap.  373),  the  provision  con- 
tained in  subdivision  2  above,  was  amended  so  as  to  read 
as  follows:  "And  all  the  legal  authority  with  which  the 
original  trustees  were  vested  by  virtue  of  their  appointment 
and  conferred  powers,  shall  forever  descend  in  regular  suc- 
cession to  their  successors  in  office  and  trust,  who,  in  con- 
formity to  the  constitution  of  said  society,  have  been  duly 
chosen  and  appointed." 

§  2.  (1.)  Trusts  of  real  and  personal  estate  for  the  benefit 
of  any  united  society  of  the  people  called  Shakers,  may 
hereafter  be  created  for  the  use  of  the  members  of  such 
society  according  to  the  religious  constitution  of  such  soci- 
ety, and  the  legal  estates  of  any  property  so  held  in  trust, 
shall  be  vested  in  the  trustees  and  in  those  to  whom 
such  property  may  be  transmitted  in  trust  by  the  appoint- 


160    Ecclesiastical  Laiu  in  the  State  of  New  YoHc. 

ment  of  auy  such  society,  so  long*  as  may  be  required  for 
the  objects  aud  purposes  of  such  trusts.  (Ibid.,  araeuded 
by  Act  of  April  10,  1852,  chap.  203.) 

(2.)  "  No  society  shall  become  beueficially  interested  in 
any  real  or  personal  property,  or  acquire  any  equitable  right 
or  interest  in  any  such  property,  either  directly  or  indirect- 
ly, the  annual  value  or  income  of  which  after  deducting 
necessary  expenses,  shall  exceed  twenty-five  thousand  dol- 
lars, on  pain  of  forfeiture  of  the  privileges  conferred  by 
this  act."     (Ibid.) 

In  the  Act  of  1839  it  was  five  thousand  dollars. 

(3.)  "  Nor  shall  any  trustee  be  a  trustee  of  more  than  one 
such  society  at  the  same  time."     (Ibid.) 

§  3.  "  The  word  '  society '  for  the  purposes  of  the  pre- 
ceding section,  shall  be  construed  and  understood  to  mean, 
and  includes  all  persons  of  the  religious  belief  of  the 
persons  called  '  Shakers,'  resident  within  the  same  county." 
(Ibid.  §  3.) 

These  statutory  provisions  relative  to  the  Quakers  and 
Shakers  are  referred  to  in  McCaughall  v.  Ryan,  27  Barbour, 
376,  to  strengthen  the  argument,  that  no  devises,  even  for 
religious  purposes,  creating  trusts  not  within  the  provisions 
as  to  trusts  in  the  Revised  Statutes,  are  valid.  Trusts  of 
real  estate  for  pious  and  charitable  uses,  are  prohibited  by 
the  Revised  Statutes. 


CHAPTER  XV. 

INCORPORATIONS    GENERALLY   UNDER   SECTION   THREE. 

§  1.  First  Election  of  Trustees.  "  It  shall  be  lawful  for 
the  male  persons  of  full  age,  belouging  to  any  other  church, 
eong'regation,  or  religious  society,  now  or  hereafter  to  be 
established  in  this  State,  and  not  already  incorporated,  to 
assemble  at  the  church,  meeting-house,  or  other  place  where 
they  statedly  attend  for  divine  worship,  and  by  plurality 
of  voices  to  elect  any  number  of  discreet  persons  of  their 
church,  congregation,  or  society,  not  less  than  three  nor 
exceeding  nine  in  number,  as  trustees,  to  take  the  charge 
of  the  estate  and  property  belonging  thereto,  and  to  trans- 
act all  affairs  relative  to  the  temporalities  thereof."  (§  3  of 
Act  of  April  5,  1813,  chap.  60.) 

The  male  adults  are  to  assemble,  and  at  the  usual  place 
of  worship.  The  phrase  "  belonging  to,"  is  explained  more 
fully  in  an  ensuing  section  as  to  voters,  post,  §  4. 

§  2.  Notice  of  Election.  "  The  minister  of  such  church, 
congregation,  or  society,  or  in  case  of  his  death  or  absence, 
one  of  the  elders  or  deacons,  church-wardens  or  vestrymen 
thereof,  or  for  want  of  such  officers,  any  other  person  being 
a  member  or  a  stated  hearer  in  such  church,  congregation, 
or  society,  shall  publicly  notify  the  congregation  of  the 
time  when,  and  place  where,  the  said  election  shall  be  held, 
at  least  fifteen  days  before  the  day  of  election. 

(2.)  "  The  said  notification  shall  be  given  for  two  success- 
ive Sabbaths,  or  days  on  which  such  church,  congregation, 
or  society  shall  statedly  meet  for  public  worship,  preceding 
the  day  of  election."     (Ibid.) 

§  3.  "On  the  said  day  of  election  two  of  the  elders  or 
church-wardens,  and  if  there  be  no  such  officers,  then  two 
of  the  members  of  the  said  church,  congregation,  or  soci- 
11 


162    Ecclesiastical  Law  in  the  State  of  Neto   York. 

ety,  to  be  nominated  by  a  majority  of  the  members  present, 
shall  preside  at  such  election,  receive  the  votes  of  the 
electors,  be  the  jndges  of  the  qualifications  of  such  electors, 
and  the  officers  to  return  the  names  of  the  persons  who,  by 
plurality  of  voices,  shall  be  elected  to  serve  as  trustees  of 
the  said  church,  congregation,  or  society."     (Ibid.) 

If  persons  answering  to  the  description  of  elders  or 
church- wardens  are  present,  they  must  preside,  and  a  nomi- 
nation and  presiding  of  any  others  is  illegal. 

The  case  of  The  People  v.  Peck  (11  Wendell,  604),  estab- 
lishes this.  In  that  case,  the  minister  had  nominated  as 
moderator  and  clerk,  persons  not  so  qualified,  persons 
qualified  being  present.  It  was  held  to  be  illegal.  Tiiere 
was  in  the  case  some  evidence  of  a  dissent  to  this  course. 
But  I  doubt  whether  the  consent  of  the  majority  of  those 
present  would  have  been  sufficient  to  justify  the  choice 
of  any  one  out  of  the  appointed  class  of  elders,  if  present ; 
or  members,  if  elders  are  not  present. 

It  was  also  held,  that  the  legislature  did  not  mean  one  of 
the  clergy  to  preside.  Although  a  minister  in  the  Baptist 
Church  is  called  an  elder,  he  was  not  within  this  clause  of 
the  statute. 

The  fact  that  the  certificate  states  that  the  presiding  offi- 
cers were  chosen  by  a  plurality  of  votes,  does  not  negative 
the  fact  that  they  were  ^nominated  by  a  majority  of  the 
members  present,  which  the  statute  requires.  No  objection 
having"  been  made,  it  would  be  presumed,  in  the  absence  of 
evidence  to  the  contrary,  that  the  directions  of  the  act  had 
been  observed.  (Methodist  Church  v.  Picket,  23  Barbour's 
Rep.  436.) 

§  4.  "  At  such  election,  every  male  person  of  full  age, 
who  has  statedly  worshiped  with  such  church,  congrega- 
tion, or  society,  and  has  formerly  been  considered  as  belong- 
ing thereto,  shall  be  entitled  to  vote."     (§  3,  xd  supra.) 

The  choice  is  decided  by  a  plurality  of  voices.     (Ibid.) 

In  The  People  v.  Tuthill  (31  N.  Y.  Rep.  550),  the  phrase 
"  stated  attendance  on  divine  worship,"  used  in  the  seventh 
section,  received  a  judicial  construction.     It  means,  regular 


Incorporations  under  Section  Three.  163 

attendance  at  the  stated  times  of  worship,  as  established  in 
the  church  or  congregation,  as  distinguished  from  irregular 
or  occasional  attendance.  This  attendance  must  he  per- 
sonal, and  cannot  be  supplied  by  another.  The  regular 
attendance  of  a  wife,  or  member  of  his  family,  is  not  suffi- 
cient. And  no  amount  of  contribution  can  be  accepted  in 
lieu  of  such  stated  personal  attendance.  I  presume  the 
lanffuag-e  used  in  this  section  must  receive  the  same  con- 
struction. 

The  clause,  "  and  has  formerly  been  considered  as  belong- 
ing thereto,"  has  not  been,  I  believe,  judicially  interpreted. 
As  no  period  for  the  stated  attendance  on  worship  is  fixed 
for  the  first  election  of  trustees,  and  the  conjunction  and  is 
used,  something  else  is  plainly  intended.  Belonging  to  the 
church  or  congregation,  implies,  I  apprehend,  conformity  to 
its  doctrines,  worship,  and  discipline.  This  should  be  made 
out  satisfactorily  to  the  presiding  officers.  There  might  be, 
for  example,  a  society  formed  but  a  month  previous,  and 
persons  worshiping  for  the  whole  period.  Yet  that  would 
not  complete  the  qualification.  Adherence  to  the  tenets 
and  order  of  the  body  would  amount  to  belonging  to  it. 
Still,  a  regular  attendance  on  the  ])ublic  services  may  be 
deemed  presumptive  evidence  of  such  belonging  or  adher- 
ence until  disputed. 

§  5.  "  The  said  returning  officers  shall  immediately  there- 
after (after  the  election),  certify  under  their  hands  and  seals, 
the  names  of  the  persons  elected  to  serve  as  trustees  for 
said  church,  congregation,  or  society ;  in  which  certificate 
the  name  or  title,  by  which  the  said  trustees  and  their  suc- 
cessors shall  forever  thereafter  be  called  and  known,  shall 
be  particularly  mentioned  and  described."     (§  3,  ut  supva.) 

For  the  form  of  such  certificate,  see  Appendix. 

§  6.  "  Said  certificate,  being  proved  or  acknowledged  as 
above  directed,  shall  be  recorded  as  aforesaid."     (Ibid.) 

See  ante,  chapter  4,  §  8,  as  to  the  acknowledgment, 
proof,  place  of  record,  etc.  In  the  city  of  New  York,  the 
Register's  office  is  now  the  place  of  recording. 

§  7.  "  And  such  trustees  and  their  successors  shall  there- 


164    Ecclesiastical  Law  in  the  State  of  New   York. 

upon,  by  virtue  of  this  act,  be  a  body  corporate,  by  the  name 
or  title  expressed  in  such  certificate."     (Ibid.) 

The  creation  of  the  corporation,  therefore,  essentially  de- 
pends upon  the  sufficiency  of  the  certificate,  of  its  acknowl- 
edgment or  proof,  and  its  being  duly  recorded. 

The  Methodist  Episcopal  Church  v.  Picket  (19  N.  Y.  Rep. 
482),  is  important  upon  the  subject  of  the  certificate.  In 
that  case  it  merely  set  forth,  that  agreeably  to  a  law  of  the 
State  of  New  York,  of  the  5th  of  April,  1813,  the  male 
members  of  the  Methodist  Episcopal  Church  at,  etc.,  agree- 
ably to  public  notice  given,  met  at,  etc.,  on,  etc.,  at  their 
meeting-house ;  and  by  a  plurality  of  votes  chose  R.  J.  and 
0.  B.  to  preside,  and  then  proceeded  to  the  choice  of  five 
trustees.  On  canvassing  the  votes,  it  was  found,  that  the 
following  persons  were  duly  elected,  namely,  Richard  Jones, 
etc.  We,  the  returning  officers,  do  certify  that  R.  J.,  etc., 
were  legally  elected  trustees  for  the  Methodist  Episcopal 
Church,  in  the  village  of  Lyons,  agreeably  to  said  statute 
passed  April  5,  1813. 

The  Court  held,  in  the  first  place,  that  to  establish  a  cor- 
poration de  facto  against  one  who  had  recognized  its  corpo- 
rate character  by  dealing  with  it,  it  was  sufficient  to  show 
the  existence  of  a  law  authorizing  the  formation,  proceed- 
ings taken  in  professed  compliance  with  such  law,  and  acts 
of  subsequent  user. 

It  held  also,  that  the  certificate  did  substantially  conform 
to  the  provisions  of  the  statute.  The  Court  adopted  the 
views  of  the  Supreme  Court. 

§  8.  "  The  Clerk  of  every  county,  for  recording  every 
certificate  of  incorporation  by  virtue  of  this  act,  shall  be 
entitled  to  seventy-five  cents,  and  no  more."  (§  3,  ut  supra.) 

It  was  before  shown  that  in  the  city  of  New  York,  the 
recording  must  be  done  in  the  Register's  office.  {Ante, 
chap.  4,  §  8.) 

§  9.  (1.)  "  It  shall  be  lawful  for  any  two  of  such  trustees, 
other  than  the  trustees  mentioned  in  the  past  section  of 
this  act,  or  their  successors,  at  any  time,  to  call  a  meeting 
of  such  trustees."     (§  5  of  Act  of  April  5,  1813,  chap.  60.) 


Incorporaiions  under  Section  Three.  IGo 

(2.)  "  A  majority  of  the  trustees  of  any  cliureh,  congTe- 
gation,  or  society  mentioned  in  this  act,  being  lawfully  con- 
vened, shall  be  competent  to  do  and  perform  all  matters  and 
tilings  which  such  trustees  are  authorized  or  required  to  do 
and  perform."     (Ibid.) 

(3.)  "  All  questions  arising  at  such  meeting  shall  be  de- 
termined by  a  majority  of  the  trustees  present ;  and  in  case 
of  an  equal  division,  the  presiding  trustee  shall  have  a 
casting  vote."     (Ibid.) 

The  trustees  are  not  duly  convened  unless  notice  is  given 
to  every  one  of  them  of  the  meeting  called ;  or  unless  a 
by-law  or  rule  has  appointed  fixed  days  for  a  meeting,  of 
which  all  are  legally  bound  to  take  notice.  [Ante,  chap.  4.) 
Wlien  duly  convened,  there  must  be  a  majority  of  the  whole 
present ;  and  a  majority  of  such  majority  can  decide. 

I  have  not  found  any  provision  as  to  the  choice  of  the 
presiding  trustee.  No  doubt  the  corporation  could  regulate 
this  matter  by  a  by-law.  If  there  is  none  such,  the  trustees 
present  may  choose  him. 

The  direction  of  these  matters  is  with  the  members  of  the 
church,  who  could  establish  rules  ;  and  I  think  the  trustees 
themselves  may  do  so.     (Wilcox  on  Corporations,  p.  42.) 

The  presiding  trustee  is  not  deprived  of  his  regular  vote, 
because  of  presiding,  and  I  apprehend  the  clause  as  to  a 
casting  vote  may  operate  to  give  him  a  double  vote,  in  the 
case  when  the  equality  is  produced  by  his  own  regular  vote. 
(See  ante,  chap.  4,  §  16.) 

The  trustees,  in  order  to  bind  the  society  by  any  act  in 
their  power  to  perform,  must  meet  as  a  board,  so  that  they 
may  have  each  other's  views,  and  deliberate  and  decide  the 
questions  before  them.  The  separate  action  of  the  trustees 
individually  without  consultation,  although  a  majority  should 
agree  upon  a  measure,  would  not  be  a  lawful  act.  (Com- 
meyer  v.  United  German  Lutheran  Churches,  2  Sandf.  Ch. 
Rep.  186.) 

§10.  (1.)  Tenure.  —  Classes. —  Vacancies.  The  trustees 
first  chosen  according  to  the  third  section  of  this  act,  shall 
continue  in  office  for  three  years  from  the  day  of  their  elect- 
ion.    (§  6  of  Act  of  April  5,  1813,  Laws,  chap.  60.) 


166    Ecclesiastical  Law  in  the  State  of  New   York. 

(2.)  Immediately  after  their  election,  the  said  trustees 
shall  he  divided  hy  lot,  into  three  classes,  numhered  one,  two, 
and  three ;  and  the  seats  of  the  memhers  of  the  first  class 
shall  be  vacated  at  the  expiration  of  the  first  year,  of  the 
memhers  of  the  second  class  at  the  expiration  of  the  second 
year,  and  the  members  of  the  third  class  at  the  expiration 
of  the  third  year,  to  the  end  that  the  third  part  of  the  whole 
number  of  trustees,  as  nearly  as  possible,  may  be  annually 
chosen.     (Ibid.) 

(3.)  The  said  trustees,  or  a  majority  of  them,  shall,  at 
least  one  month  before  the  expiration  of  the  office  of  any 
of  such  trustees,  notify  the  same  in  writing  to  the  minister ; 
or,  in  case  of  his  death  or  absence,  to  the  elders  or  church- 
wardens ;  or,  in  case  there  shall  he  no  elders  or  church- 
wardens, then  to  the  deacons  or  vestrymen  of  any  such 
church,  congregation,  or  society,  specifying  the  names  of 
the  trustees  whose  time  will  expire.     (Ibid.) 

(4.)  And  the  said  minister,  or,  in  case  of  his  death  or 
absence,  one  of  the  said  elders  or  church- wardens,  or  dea- 
cons or  vestrymen,  shall,  in  manner  aforesaid,  proceed  to 
notify  the  members  of  the  said  church,  congregation,  or 
society,  of  such  vacancies,  and  appoint  the  time  and  place 
for  the  election  of  new  trustees  to  fill  up  the  same,  which 
election  shall  be  held  at  least  six  days  before  such  vacancies 
shall  happen;  and  all  such  subsequent  elections  shall  be 
held  and  conducted  by  the  same  persons,  and  in  the  manner 
above  directed,  and  the  result  thereof  certified  by  them; 
and  such  certificate  shall  entitle  the  persons  elected  to  act 
as  trustees.     (Ibid.) 

(5.)  And  in  case  any  trustee  shall  die  or  refuse  to  act,  or 
remove  within  the  year,  notice  thereof  shall  be  given  by  the 
trustees  as  aforesaid,  and  a  new  election  appointed  and  held, 
and  another  trustee  be  elected  in  his  stead  in  manner  afore- 
said.    (Ibid.) 

§  11.  Voters  at  Suhscquent  Elections.  (1.)  "No  person 
belonging  to  any  church,  congregation,  or  society  intended 
by  the  third  section  of  this  act,  shall  be  entitled  to  vote  at 
any  election  succeeding  the  first,  until  he  shall  have  been 


Incorporations  under  Section  Three.  ]67 

a  stated  attendant  on  divine  worship,  in  the  said  church, 
congregation,  or  society,  at  least  one  year  before  such 
election  ;  and  shall  have  contributed  to  the  support  of  such 
church,  congregation,  or  society,  according  to  the  usages 
and  customs  thereof."     (§  7  of  Act  of  April  5,  1813.) 

(2.)  The  clerk  of  the  said  trustees  shall  keep  a  register 
of  the  names  of  all  such  persons  as  shall  desire  to  become 
stated  hearers  in  the  said  church,  congregation,  or  society, 
and  shall  therein  note  the  time  when  such  request  was 
made ;  and  the  said  clerk  shall  attend  all  such  subsequent 
elections,  in  order  to  test  the  qualifications  of  such  electors, 
iu  case  the  same  should  be  questioned.     (Ibid.) 

The  case  of  The  People  v.  Tuthill  (.31  N.  Y.  Rep.  .550), 
was  before  referred  to  {ante,  §  4),  as  interpreting  the  phrase 
"  stated  attendance  of  divine  worship."  It  must  be  regular 
personal  attendance.  That  of  a  wife  or  other  member  of 
the  family  would  not  suffice.  So  it  was  decided  that  the 
contrilnition  prescribed  must  be  according  to  the  usages  and 
customs  of  the  society,  which  implied  that  such  contribu- 
tions must  be  of  a  vital  and  substantial  character.  Con- 
tributions, however  regular  or  large,  could  not  give  a  right 
to  vote  without  the  stated  personal  attendance. 

The  register  is  not  conclusive.  It  does  not  prevent  an 
inquiry  into  the  qualifications  of  a  person  offering  to  vote. 
Parol  evidence  to  this  point  is  admissible.  It  is  prima  facie 
proof  of  the  right  of  one  registered.  (The  People  v.  Peck, 
11  Wendell,  605.) 

§  12.  "  Nothing  in  this  act  contained  shall  be  construed 
or  taken  to  give  to  any  trustee  of  any  church,  congregation, 
or  society,  the  power  to  fix  or  ascertain  any  salary  to  be  paid 
to  any  minister  thereof;  but  the  same  shall  be  ascertained 
by  a  majority  of  persons  entitled  to  elect  trustees,  at  a  meet- 
ing to  be  called  for  that  purpose ;  and  such  salary,  when 
fixed,  shall  be  ratified  by  said  trustees  or  a  majority  of  them, 
by  an  instrument  in  writing,  under  their  common  seal ; 
which  salary  shall  thereupon  be  paid  by  the  said  trustees 
out  of  the  revenues  of  such  church,  congregation,  or  soci- 
ety."    (§  8  of  Act  of  April  5,  1813.) 


168    Ecclesiastical  Laiv  in  the  State  of  New   York. 

I  have  before  noticed,  that  this  section  is  not  appHcable 
to  the  Protestant  Episcopal  Chnrch ;  but  that  the  vestry  fix 
the  salary.  I  apprehend  that  it  is  also  inapplicable  to  the 
Dutch  Reformed  Church. 

In  the  case  of  Erbagh  v.  The  German  Reformed  Church 
(3  E.  D.  Smith,  30),  the  suit  was  by  a  minister  against  the 
corporation,  alleging  a  call  in  1844  at  a  fixed  salary,  and 
rendition  of  services  until  January,  1846.  That  the  defend- 
ants had  executed  three  bonds  to  him,  two  in  June,  1845, 
and  one  in  January,  1846.  Before  the  call,  the  Chancellor, 
reversing-  a  decree  of  the  Assistant  Vice-Chancellor,  had 
determined  that  the  board  of  trustees  which  called  the 
plaintiff"  was  the  lawful  board  of  the  corporation.  A  sur- 
render of  the  temporalities  had  then  been  made  to  such 
board  by  the  adverse  party.  Upon  an  appeal,  this  decree 
of  the  Chancellor  was  reversed. 

It  was  decided,  that  the  bonds  executed  before  the  revers- 
al, for  the  salary,  were  valid  and  binding,  and  the  one  made 
subsequently  was  not  so. 

It  was  also  held,  that  the  statute  as  to  fixing  the  salary 
was  complied  with  under  the  follomng  circumstances. 
Xotice  of  making  the  call  was  published  from  the  pulpit, 
and  a  meeting  for  that  purpose  of  the  congregation  called. 
At  such  meeting  the  call  was  approved  ;  and  was  ratified  by 
the  trustees  on  the  same  day.  The  call  contained  the 
amount  of  salary  to  be  paid  to  the  minister. 

The  clause  as  to  payment  out  of  the  revenues  of  the 
church  was  noticed.  It  was  considered  to  be  directory,  and 
a  neglect  to  comply  with  it  could  not  vitiate  a  contract 
otherwise  valid,  and  upon  which  the  minister  could  sue. 

In  The  German  Reformed  Church  v.  Basche  (5  Sandf.  Sup. 
Ct.  Rep.  666),  a  minority  of  the  trustees  and  other  officers, 
in  communicating  to  the  defendant  his  election,  undertook 
to  fix  his  salary,  no  vote  of  the  congregation  having  been 
taken.  It  was  held  void.  It  was  also  held,  that  the  salary 
must  be  confirmed  by  the  trustees.  "  It  was  the  right,  if 
not  the  duty,  of  the  trustees,  to  withhold  their  assent,  where 
there  was  reason  to  believe  that  the   employment  of  the 


Incorporations  under  Section  Three.  169 

individual  selected  by  the  majority  of  the  congregation,  he  he 
orthodox  or  not,  will  destroy  the  harmony  of  the  church." 
Lawyer  v.  Cipperly,  7  Paig-e,  381,  was  cited. 

§  13.  Increase  or  Reduction  of  Trustees.  The  ninth  sec- 
tion of  an  act  entitled  "  An  Act  to  provide  for  the  In- 
corporation of  Religious  Societies,"  passed  April  5,  1813,  is 
hereby  amended  so  as  to  read  as  follows  :  — 

"  And  be  it  further  enacted,  that  whenever  any  relig'ious 
corporation  within  this  State,  other  than  the  chartered  cor- 
porations, shall  deem  it  necessary,  and  for  the  interest  of 
such  religious  corporation,  to  reduce,  or  to  increase,  their 
number  of  trustees,  it  shall  and  may  be  lawful  for  any  such 
religious  corporation  to  reduce,  or  to  increase,  their  number 
of  trustees  at  any  annual  meeting ;  provided  that  such  re- 
duction or  increase,  shall  not  be  such  as  to  leave  a  less  num- 
ber than  three,  or  a  larger  number  than  nine  trustees,  in  any 
one  of  the  said  religious  corporations ;  provided,  that  a  notice 
of  at  least  two  weeks  slmll  he  given  at  a  regular  meeting  of  such 
society,  of  the  time  and  place  of  holding  any  meeting  at  which 
such  reduction  or  increase  may  be  proposed."  (§  1  of  Act  of 
April  6,  1866,  Laws,  chap.  414.) 

The  amendments  are  shown  in  the  passages  italicized. 

I  presume  that  this  section  is  not  applicable  to  the  Prot- 
estant Episcopal  churches,  nor  to  those  of  the  Dutch 
Reformed. 

§  14.  (1.)  "  If  any  church,  cong'regation,  or  religious  soci- 
ety now,  or  hereafter  to  be  incorporated,  according  to  the 
provisions  of  the  third  section  of  the  act  hereby  amended, 
shall  neglect  or  omit,  or  have  neglected  or  omitted,  at  their 
stated  annual  elections,  to  choose  any  one  of  the  three 
classes  of  trustees  as  mentioned  in  the  sixth  section  of  the 
said  act,  the  said  church  or  congregation,  or  religious  society 
shall  not  be  deemed  or  taken  to  be  thereby  dissolved ;  but 
the  trustees  then,  or  now  already  chosen,  shall  continue  to 
hold  their  offices  until  others  be  chosen  in  their  stead." 
(§  1  of  Act  of  February  15,  1826,  Laws,  chap.  47.) 

This  clause  introduces  the  important  point  of  a  holding 
over  of  old  trustees  until  the  choice  of  new  trustees,  which 


170    Ecclesiastical  Law  in  the  State  of  Neio   YorJc. 

was  omitted  in  the  sixth  section  of  the  Act  of  1813.  (See, 
as  to  this  rule,  post,  chapter  16,  §§  15,  16,  where  the  subject 
is  examined  at  length.) 

(2.)  "  Whenever  such  neglect  or  omission  shall  happen 
through  defect  of  due  notice  or  otherwise,  the  trustees  of 
said  church,  congregation,  or  society,  or  a  majority  of  them, 
shall  immediately  thereafter  give  notice  thereof  in  writing 
to  tlie  minister,  or  in  case  of  his  death  or  absence,  to  the 
elders  or  church-wardens ;  and  in  case  there  shall  be  no 
elders  or  church-wardens,  then  to  the  deacons  or  vestrymen 
of  any  such  church,  congregation,  or  society."     (Ibid.) 

(3.)  "  And  the  said  minister,  or  in  case  of  his  death  or 
absence,  one  of  the  said  elders  or  church-wardens,  deacons, 
or  vestrymen  shall,  in  the  manner  prescribed  in  the  third 
section  of  the  said  act,  proceed  to  notify  the  members  of  the 
said  church,  congregation,  or  society,  of  such  neglect  or 
omission,  and  appoint  the  time  and  place  for  the  election  of 
new  trustees  to  remedy  the  same ;  of  which  election  at  least 
fifteen  days'  notice  shall  be  given  in  the  manner  aforesaid." 
(Ibid.) 

(1.)  "  The  said  election  shall  be  held  and  conducted  by 
the  same  persons,  in  the  same  manner,  and  the  result  be  cer- 
tified in  like  manner,  as  is  prescribed  in  and  by  the  sixth 
section  of  the  act  hereby  amended,  and  shall  have  the  same 
force  and  effect  as  elections  held  under  and  by  virtue  of  said 
section,  and  not  otherwise."     (Ibid.) 

There  are  some  decisions  under  this  third  section,  of  a 
general  character,  and  of  great  importance. 

Thus  the  case  of  Petty  v.  Tooker  (21  N.  Y.  Rep.  267), 
arose  under  this  section,  and  related  to  a  church  orig'inal- 
ly  Congregational,  attempted  to  be  changed  into  a  Presby- 
terian. The  action  was  ejectment  to  recover  the  church 
property. 

It  was  decided,  all  the  judges  concurring  — 

That  congregations  formed  under  the  third  section,  have 
no  denominational  character,  and  none  can  be  engrafted  on 
them.  Tbe  legal  character  is  not  affected  by  the  ecclesias- 
tical connection,  doctrines,  rites,  or  modes  of  government 
of  the  church  formed  by  the  corporators. 


Incorporations  under  Section  Three.  171 

That  persons,  otherwise  quahfied,  do  not  lose  their  rig-ht 
as  eovpoi'ators  to  vote  at  elections,  by  reason  of  their  having 
individually  or  collectively  renounced  the  doctrine  or  eccle- 
siastical government  professed  and  recognized  by  the  relig- 
ious body,  in  whose  worship  and  services  the  corporate 
property  has  been  employed. 

The  title  of  the  trustees  to  office  and  control  of  the  prop- 
erty is  not  impaired  by  a  change  as  to  doctrine  or  church 
government,  on  their  part,  or  on  the  part  of  those  by  whom 
they  are  elected.  They  are  to  determine  who  shall  conduct 
the  religious  exercises.  The  only  restraint  is  the  power  of 
the  corporators  to  fix  the  salary  of  the  person  employed. 

They  have  also  the  power  to  make  such  regulations  as  to 
the  renting  and  occupation  of  pews,  as  to  exclude  persons 
holding'  obnoxious  opinions,  from  becoming"  attendants  upon 
public  worship,  and  thereby  obtaining  a  right  to  vote. 

In  this  mode  only,  or  by  express  condition  in  a  grant  of 
property,  can  its  use  be  restricted  to  the  support  of  any  par- 
ticular form  of  religious  belief  or  ecclesiastical  organization. 

The  comment  of  Mr.  Justice  Seldeu  upon  the  seventh 
section,  requiring  a  member  to  be  a  stated  attendant  for  a 
year,  is,  that  under  it  the  society  has  ob^dously,  through  its 
trustees,  full  power  to  determine  what  persons  it  will  thus 
admit  to  membership.  The  trustees  can  regulate  the  rent- 
ing of  pews,  and  could  adopt  such  regulations  as  that  no 
pew  could  be  rented  originally,  or  assigned  to  a  new  occu- 
pant, without  a  previous  consent. 

All  who  had  been  stated  attendants  upon  the  services  of 
the  preceding  year,  were  legal  voters.  Nothing  else  was 
required.  As  they  who  adhered  to  the  Presbyterian  forms 
and  faith  were  prohibited  from  voting,  the  election  was  void, 
and  no  rigdits  were  acquired  under  it. 

So  in  Burnet  v.  The  Associate  Reformed  Church  (44  Bar- 
bour's Rep.  252),  land  had  been  conveyed  to  trustees  in  trust 
to  and  for  the  uses  and  interests  of  the  religious  society 
denominated  the  Associate  Reformed  Church,  of  the  town 
of  Seneca,  for  building  a  church  on  said  lot,  or  for  a  burying- 
ground.     Another  deed  gave  land  in   trust  for  the   same 


172    Ecclesiastical  Laio  in  the  State  of  Neiv   YorJc. 

society  by  name.  And  a  third  deed  conveyed  other  land  to 
the  same  trustees,  "  for  a  parsonage,  and  nothing  else." 

It  was  decided  that  the  trustees  held  the  propei-ty  for  the 
use  of  the  society,  that  is,  of  the  corporators  entitled  to 
vote  at  the  election  of  trustees,  a  majority  of  whom  had 
control  of  the  property,  and  decided  the  ecclesiastical  re- 
lations, and  the  character  of  the  doctrines  taught  from  the 
pulpit. 

If  a  religious  society  separate  from  the  denomination  with 
which  it  was  before  connected,  and  connect  with  another, 
the  trustees  can  call  a  minister  of  such  other  denomina- 
tion, and  exclude  all  others. 

The  trust  deeds  ditl  not  make  the  holding  of  the  property 
to  depend  upon  adherence  to  any  particular  tenets,  or  form 
of  church  government. 

See  further  upon  this  point,  jpost,  chapter  23.  "  The  In- 
terposition of  Civil  Tribunals." 

The  trustees  do  not  form  the  corporation.  The  body  of 
members,  those  entitled  to  vote,  constitute  the  corporate 
body.  The  trustees  are  the  agents  or  officers  of  the  corpo- 
ration in  like  manner  as  the  directors  of  a  bank  or  insur- 
ance company,  clothed  with  certain  powers,  derived  from 
statutes,  or  necessarily  incident  to  powers  so  conferred. 
(The  People  v.  Fulton,' 11  N.  Y.  Rep.  94.) 


CHAPTER  XVI. 

GENERAL   PROVISIONS   APPLICABLE   TO  ALL   INCORPORATIONS 
UNDER  ACT   OP    1813,  AND   ITS   AMENDMENTS. 

§  1.  Common  Seal.  The  trustees  of  eveiy  clinreli,  con- 
gregation, or  society  hereinbefore  mentioned,  and  their 
successors,  shall  have  and  use  a  common  seal,  and  may 
renew  and  alter  the  same  at  their  pleasure.  (§  4  of  Act  of 
April  5,  1813,  chap.  60.) 

The  common  law  intended  by  a  seal  an  impression  upon 
wax  or  wafer,  or  some  other  tenacious  substance,  capable  of 
being  impressed.  This  remains  the  general  rule  of  law  in 
this  State.  (Warren  v.  Lynch,  5  Johns.  Rep.  239.)  Such 
law  is  applicable  to  deeds  and  private  instruments  still. 
Instruments  of  a  public  character  with  a  stamp  impressed 
upon  the  paper  are  made  valid  by  special  acts. 

From  the  various  passages  of  Scripture  cited  by  Chancel- 
lor Kent  and  others,  referred  to  by  Calmet,i  the  conclusion 
seems  to  be,  that  the  seal,  at  least  such  as  was  used  on  let- 
ters, as  in  Esther  viii.  10,  were  raised  inscriptions  or  marks 
upon  clay  or  metal.  Wax  was  unsuitable  to  the  warm 
climates  of  the  East. 

§  2.  Power  to  ialce  the  Property.  (1.)  The  trustees  are 
authorized  and  empowered  to  take  into  their  possession  and 
custody  all  the  temporalities  belonging  to  the  said  church, 
congregation,  or  society,  whether  the  same  consist  of  real 
or  personal  estate,  and  whether  the  same  shall  have  been 
given,  granted,  or  devised,  directly  to  such  church,  congre- 
gation, or  society,  or  to  any  other  person  for  their  use.  (§  4, 
lit  supra.) 

(2.)  "  And  {are  authorized  and  empowered)  to  recover,  hold, 

1  In  verba,  and  see  Title  Books. 


174    Ecclesiastical  Lcm  in  the  State  of  Neiu   Yorlc. 

and  enjoy  all  the  debts,  demands,  rights  and  privileges,  and 
all  churches,  meeting-houses,  parsonages,  and  hurying- 
places,  with  the  appurtenances,  and  all  estates  belonging  to 
such  church,  congregation,  or  society,  in  whatever  manner 
the  same  may  have  been  acquired,  or  in  whose  name  soever 
the  same  may  be  held,  as  fully  and  amply,  as  if  the  right  or 
title  thereto  had  originally  been  vested  in  the  said  trustees.'' 
(Ibid.) 

These  clauses  of  the  section  relate  to  property,  real  or 
personal,  held  by  the  congregation  or  church,  or  by  some 
person  as  trustee  or  for  its  use,  prior  to  its  incorporation. 

In  the  Act  of  the  6th  of  April,  1784,  the  clause  above 
marked  (1),  was  enacted,  with  this  addition  :  "  And  although 
such  gift,  grant,  or  devise,  may  not  have  been  strictly 
agreeable  to  the  rigid  rules  of  law,  or  might,  on  strict 
construction,  be  defeated  by  the  operation  of  the  Statutes 
of  Mortmain." 

The  fourth  section  of  the  general  revised  Act  of  March 
27,  1801  (Laws  1801,  chap.  69),  was  the  same  as  the  section 
in  the  act  of  1784. 

The  Chancellor,  in  The  Dutch  Church  in  Garden  Street 
V.  Mott  (7  Paige,  77),  cites  this  provision  of  the  Act  of  1801, 
as  authorizing  the  trustees  of  that  church,  incorporated  in 
1696,  to  take  and  hold  land  given  to  trustees  for  the  use  of 
the  church  or  congreg'ation  in  1691.  He  considered  that 
after  the  lapse  of  140  years,  the  legal  presumption  would 
be,  that  a  conveyance  had  been  made,  but  independently  of 
that,  this  provision  of  the  Act  of  1801  (he  might  have  said 
of  1784)  transferred  the  legal  title  to  the  corporation.  See 
also,  The  Baptist  Church  v.  Wetherell,  3  Paige,  298. 

The  case  of  Jackson  v.  Hammond  (2  Caines'  Cases  in 
Error,  33),  is  undoubted  law,  so  far  as  it  settled  that  a  devise 
to  a  secular  incorporated  body,  in  trust  for  the  minister  of 
an  unincorporated  church,  was  invalid.  It  is  certainly  not 
law  in  deciding  that  the  fourth  section  of  the  Act  of  1784 
did  not  cure  the  objection,  if  the  church  became  incorpo- 
rated under  that  statute.  The  construction  that  the  section 
related  only  to  personal  property  was  erroneous.     To  this, 


General  Provisions  under  Act  of  1813,  etc.     175 

Justice  Duer  alludes  in  the  case  of  Ayres  v.  The  Methodist 
Church,  3  Sandf.  Sup.  Ct.  Rep.  351. 

§  3.  Trustees  to  Sue  and  he  Sued.  The  trustees  may,  by 
their  corporate  name  and  title,  sue  and  be  sued,  in  all  courts 
of  law  and  equity.     (§  4,  ut  supra.) 

In  the  case  of  The  Reformed  Dutch  Church  v.  Yeeder 
(4  Wendell,  494),  a  grant  had  been  made  to  individuals  for 
the  use  of  the  church.  It  was  subsequently  incorporated. 
An  action  in  the  corporate  name  for  rent  was  sustained. 

In  The  People  v.  Fulton  (11  N.  Y.  Rep.  94),  it  was  held, 
that  an  action  under  statute  for  forcible  entry  and  detainer, 
could  not  be  supported  in  the  name  of  the  trustees,  but 
must  be  in  the  name  of  the  corporation.  The  title  was  in 
that  body,  not  in  the  trustees,  who  were  only  the  agents  or 
officers  having  control  and  possession,  but  not  the  title. 

Religious  incorporations,  when  bringing  an  action,  must 
show  themselves  to  be  incorporated.  But,  by  statute  (2  R. 
S.  458,  §  3),  it  is  not  necessary  to  make  this  proof  on  the 
trial,  unless  there  is  a  plea  of  no  incorporation  in  abatement 
or  bar.  This  statute  seems  general,  as  to  all  corporations 
created  under  any  statute  of  the  State. 

In  the  matter  of  The  Methodist  Episcopal  Church  v. 
Ticket  (23  Barbour,  486),  it  was  allowed,  that  when  a  corpo- 
ration brings  an  action,  the  fact  of  a  legal  incorporation 
must  be  proven.  The  certificate  showed  an  act  of  incorpo- 
ration in  1826.  It  was  proven  that  certain  persons  were 
trustees  in  1850 ;  that  the  society  had  a  place  of  worship. 
A  subscription  paper  had  been  circulated  to  raise  funds  to 
remove  the  old,  and  erect  a  new  house.  The  defendant  had 
subscribed.  The  evidence,  it  was  held,  warranted  the  con- 
clusion, that  the  society  had  acted  as  a  corporation  since 
the  date  of  the  certificate. 

In  The  Trustees  of  the  Methodist  Episcopal  Church  v. 
Stewart  (27  Barbour,  553),  it  was  held,  that  a  trustee  could 
not  be  sued  by  his  co-trustee  as  a  trespasser,  in  respect  of 
the  property  of  the  society,  until  he  had  been  divested  of 
his  character  as  trustee.  His  possession  is  that  of  his 
co-trustees,  and  his  right  equal  to  that  of  others. 


176    Ecclesiastical  Law  in  the  State  of  New   York. 

§  4.  Authority  to  inirclmse  and  Jwld  Lands.  (1.)  "  The 
trustees  are  also  authorized  to  purchase,  take,  and  hold 
other  real  and  personal  estate,  and  to  demise,  lease,  and  im- 
prove the  same,  for  the  use  of  such  church,  congregation, 
or  society,  or  for  other  pious  uses,  so  as  the  whole  real  and 
personal  estate  of  any  such  church,  congregation,  or  socie- 
ty (certain  exceptions  are  specified),  shall  not  exceed  the 
annual  value  of  three  thousand  dollars."  (§  4  of  Act  of 
1813.) 

(2.)  It  shall  he  lawful  for  each  and  every  of  the  religious 
incorporations  created,  or  to  he  created  within  the  city  of 
New  York,  in  pursuance  of  this  act,  or  of  the  act  hereby 
amended,  to  take  and  hold  real  and  personal  estate  of  the 
annual  value  and  income  of  six  thousand  dollars,  anything 
contained  in  the  fourth  section  of  the  act  hereby  amended, 
to  the  contrary  notwithstanding.  (§  3  of  Act  of  March  5, 
1819,  chap.  33.) 

(3.)  It  shall  be  lawful  for  every  religious  corporation  cre- 
ated by  letters-patent,  under  the  great  seal  of  the  Colony  of 
New  York,  to  have,  hold,  and  enjoy  lands,  tenements,  goods 
and  chattels,  of  the  yearly  value  of  three  thousand  dollars, 
although  the  letters-patent  by  which  such  corporation  was 
created,  shall  contain  a  clause  or  clauses,  restraining  and 
limiting  the  annual  revenue  and  income  of  such  corpora- 
tion, to  a  sum  less  than  the  said  three  thousand  dollars. 
(§  12  of  Act  of  April  5,  1813,  chap.  60.) 

Acquisition  hy  Deed.  The  leading  case  of  Tucker  v.  St. 
Clement's  Church  (3  Sandf.  Sup.  Ct.  Rep.  242,  affirmed  in 
4th  Selden,  558,  n.),  was  as  follows :  — 

The  church  was  incorporated  in  1830,  under  the  first  sec- 
tion of  the  Act  of  1813.  By  a  deed  dated  in  1843,  premises 
in  the  city  of  New  York  (subject  to  a  lease  for  life)  were 
conveyed  to  "  the  Rector,  Church-wardens,  and  Vestrymen 
of  St.  Clement's  Church,"  being  the  corporate  name.  Ha- 
bendum as  follows  :  "  To  have  and  to  hold  all  the  above- 
mentioned  and  described  premises,  with  the  appurtenances, 
unto  tlic  said  party  of  the  second  part,  their  successors  and 
assigns  forever,  upon  condition  that  the  rents,  issues,  and 


General  Provisions  under  Act  of  1813,  etc.      177 

profits  of  the  premises  hereby  granted  and  conveyed,  and 
in  case  the  same  shall  be  sold,  the  interest,  income,  or 
dividends  of  the  money  for  which  the  same  shall  be  sold, 
shall  ))e  applied  by  the  said  parties  of  the  second  part  to 
the  maintenance  and  support  of  the  minister  for  the  time 
being-  of  the  said  church,  and  for  no  other  purpose  whatso- 
ever." 

The  Court  held,  Mr.  Justice  Duer  delivering  the  opin- 
ion,— 

That  a  corporation,  if  unrestricted  by  law  or  charter,  has 
a  capacity  to  take  and  dispose  of  real  estate,  the  same  as  a 
natural  person ;  and  that  it  was  not  to  be  doubted,  that  it 
could  hold  lands  as  a  trustee. 

That  where  the  purposes  for  which  it  may  hold  real  es- 
tate are  enumerated  in  its  charter,  the  maxim  expressio  unis 
est  exchmo  alterius,  is  to  be  applied,  and  the  specification  is 
construed  as  a  prohibition  of  all  that  it  does  not  embrace. 
It  can  hold  lands  for  the  purposes  specified,  and  for  none 
other.  (Jackson  v.  Hartwell,  18  Johnson's  Rep.  422 ;  1  R. 
S.  602,  §§  1  and  4.) 

The  right  to  take  and  hold  lands  was  co-extensive  with, 
and  for  the  same  purposes  as  that  to  demise  and  lease 
them ;  and  the  trusts  were  of  the  same  character.  The 
use  specified  in  the  conveyance  must  be  one  of  the  purposes 
for  which  the  society  was  incorporated,  and  to  which  the 
trustees  might  lawfully  apply  the  property  if  generally  con- 
veyed to  the  corporation. 

Within  the  most  strict  rules  of  interpretation,  the  phrase 
of  the  statute,  "  to  take  and  hold  for  the  use  of  the  church 
and  other  pious  uses,"  the  support  of  a  minister  of  the 
church  was  plainly  within  the  meaning. 

Again  it  was  held,  that  the  power  of  a  religious  corpora- 
tion to  hold  lands  upon  a  trust  of  this  description  was  not 
forbidden  by  the  Revised  Statutes  as  to  trusts.  The  act  for 
the  incorporation  of  religions  societies,  far  from  being  re- 
pealed, was  in  fact  reenacted  in  that  revision. 

This  case  was  affirmed  in  the  Court  of  Appeals  ;  and  I 
apprehend  that  nothing  in  the   subsequent  cases   in  that 

12 


178   Ecclesiastical  Law  in  the  State  of  Netu   York. 

court  (Levy  v.  Levy,  33  N.  Y.  Rep.  97  ;  Bascoin  v.  Albertson, 
34  ibid.  584,)  affect  this  decision. 

It  may  be  observed  tiiat  the  learned  justice  who  decided 
the  case  of  St.  Clement's  Church  gave  the  opinion  in  the 
case  of  Ayres  v.  The  Methodist  Church  (3  Sandf.  Sup.  Ct. 
Rep.  351),  the  leading  case  in  overturning  the  old  doctrine 
of  charitable  uses.  He  insists,  with  unanswerable  force, 
that  there  is  no  inconsistency  between  the  decisions. 

The  law  as  laid  down  in  the  case  of  St.  Clement's  Church, 
was  recognized  in  Williams  v.  Williams,  8  N.  Y.  Rep.  525. 

Devises  to  Incorporations.  It  is  a  question  which  has 
arisen,  and  may  arise  again,  in  connection  with  colonial 
charters,  and  incorporations  under  the  successive  general 
acts,  to  what  extent  and  under  what  circumstances  devises 
to  religious  corporations  were  valid.  I  believe  the  following 
propositions  can  be  sustained,  and  will  tend  to  determine 
the  point  in  particular  cases. 

(1.)  As  matter  of  history,  we  are  to  conclude,  that  the 
statute  of  Elizabeth  did  not  create  a  new  law  upon  the 
subject  of  charitable  uses.  It  created  a  new  and  ancillary 
jurisdiction  to  execute  them.  It  left  the  authority  of  the 
Court  of  Chancery  over  them,  as  it  before  existed.  It 
defined  what  should  be  deemed  charitable  uses,  and  so  far 
guided  and  controlled  the  courts. 

(2.)  The  Statutes  of  Mortmain,  which  were  passed  before 
1664,  were  in  force  in  the  Colony  and  State,  until  the  gen- 
eral repealing  act  of  all  English  statutes,  by  the  Act  of  the 
27th  February,  1788. 

The  clause  in  the  Act  of  April  6,  1784,  before  cited, 
appears  to  be  a  legislative  recognition  of  the  prevalence  of 
such  statutes,  or  some  of  them. 

The  charter  to  Trinity  Church  of  1697  gives  authority  to 
take  and  acquire  lands  of  a  certain  value,  the  Statute  of 
Mortmain  and  any  other  statute  to  the  contrary  notwith- 
standing. 

Mr.  Justice  Duer  in  The  Methodist  Church  v.  Ayres  (3 
Sandf.  Sup.  Ct.  Rep.  351),  refers  to  the  clause  in  the  Act 
of  1784  as  establishing  the  force  of  such  statutes. 


General  Provisions  under  Act  of  1813,  etc.     179 

Numerous  judges  in  the  late  cases  speak  of  the  general 
repealing  Act  of  1788,  as  repealing  the  Statutes  of  Mort- 
nuiin,  thus  conceding  their  prevalence  before. 

One  observation  is  of  much  importance :  "  The  aliena- 
tions in  mortmain,  before  the  statute  9  George  II.,  were 
never  made  void,  so  as  to  let  in  the  grantors  or  their  heirs 
at  law ;  but  a  right  was  given  to  the  mesne  Lords,  or  the 
King,  to  seize  them  as  forfeited.  Therefore,  if  they  remit- 
ted this  right,  the  alienation  was  good.  Dispensations  by 
license  to  hold  in  mortmain  then  arose."  (Wilmot's  Opin- 
ions, p.  2,  and  the  statutes  and  cases  cited  in  Wright  v.  The 
Methodist  Church,  Hoffman's  Rep.  253.) 

The  statute  of  9  George  II.  (1734),  the  crowning  Statute 
of  Mortmain,  created  a  new  rule.  It  is  hereafter  shown 
that  it  was  not  of  force  in  the  colony. 

The  statutes  conmieucing  with  Magna  Charta  (9  Henry 
III.  cap.  36,  A.  D.  1224),  and  ending  with  23  Henry  VIII. 
cap.  10,  1531,  are  cited  in  Burns'  Ecclesiastical  Law,  p. 
317,  a.  They  were  all  in  force  in  1664,  and  certainly  were 
not  inapplicable  to  our  colonial  situation  and  circumstances. 
The  early  statutes  were  directed  against  ecclesiastical  corpo- 
rations. Chief  Justice  Wilmot  says  that  the  prohibition  was 
extended  to  all  lay  and  secular  corporations  as  well  as  relig- 
ious, by  the  act  of  7  Edward  I.  cap.  2.  (Wright  v.  Trust- 
ees, etc.,  ut  supra.) 

(3.)  The  Statute  of  Wills,  32  Henry  VIIL,  a  branch  of  the 
law  of  mortmain  in  one  particular,  was  in  force  in  the  col- 
ony, until  superseded  by  our  Statute  of  Wills  of  the  3d  of 
March,  1787.     (1  Greeuleaf,  385.) 

The  statute  of  Henry  VIIL  —  the  act  of  our  State  of  1787 
—  the  statute  in  the  revision  of  1813,  and  in  the  previous  re- 
visions, —  all  contained  the  clause  which  excepted  from  the 
power  to  devise,  a  devise  to  bodies  politic  and  corporate. 
In  the  revision  of  1830,  a  change  was  made,  by  which  a 
corporation  was  made  incapable  of  taking  by  devise,  unless 
expressly  authorized  by  its  charter  or  by  statute.  (2  R.  S. 
57,  §  3.)  The  restriction  upon  the  power  of  the  devisor  to 
grant,  was  changed  into  an  incapacity  of  the  devisee  to 
take,  except  as  provided. 


180    Ecclesiastical  Laio  in  the  State  of  New   York. 

(4.)  The  statute  of  43  Elizabeth  is  treated  as  prevailing", 
by  Justice  Duer  in  Ayres  v.  The  Methodist  Church  ;  by  the 
Court  iu  Audrews  v.  The  Bible  Society,  4  Sandford,  186 ;  by 
Justice  Comstock  iu  Beekmau  v.  Bonser,  23  N.  Y.  Rep.  307  5 
by  Justice  Wright  in  Levy  v.  Levy,  33  N.  Y.  Rep.  110 ;  and 
by  Justice  Porter  in  Bascom  v.  Albertson,  34  N.  Y.  Rep.  603. 

A  careful  examination  of  the  opinion  of  Denio,  Justice,  iu 
Williams  v.  Williams  (4  Selden,  525) ;  of  Justice  Seldeu  in 
Owen  V.  The  Missionary  Society  (14  N.  Y.  Rep.  384),  will 
show  that  nothing-  said  by  these  learned  judges  is  hostile  to 
this  proposition. 

And  the  true  view  is,  that  this  statute  did  not  merely  cre- 
ate an  inquisitorial  commission  and  a  new  remedy,  but  legal- 
ized a  variety  of  specific  charities ;  defined  what  should  be 
regarded  as  charities,  and  brought  such  within  the  jurisdic- 
tion of  the  Court  of  Chancery.  The  commission  fell  into 
disuse.  The  charities  of  the  statute  were  enforced  in  equi- 
tv.  The  law  in  every  particular,  except  the  special  mode  of 
enforcement,  was  applicable  to  the  situation  of  the  colony. 
The  opinion  of  Chancellor  Jones  in  the  Orphan  Asylum 
case  (9  Cowen,  437),  as  to  its  operation,  has  stood  the  test 
of  every  examination. 

When  we  examine  this  famous  statute,  either  as  an  epit- 
ome of  the  former  law,  or  as  defining  what  it  shall  be  for 
the  future,  there  is  scarcely  an  object  in  its  enumeration 
which  was  not  necessary  or  important  to  be  promoted  in  the 
very  infancy  of  a  colony.  The  remedy  was  local,  and  even 
that  remedy  soon  became  obsolete  in  England. 

(5.)  Another  consideration  appears  to  me  to  be  of  much 
force.  Many  of  the  statutes  of  mortmain,  prior  to  that  of 
9  George  II.,  were  particularly  directed  against  gifts  in  sup- 
port of  Papistical  and  Romish  doctrines.  They  were  in  fact 
offsprings  of  the  Reformation.  The  statute  of  1  Edward 
VI.  cap.  14,  respecting  Chantries  Collegiate,  with  its  noble 
preamble,  is  preeminently  so.  Any  conveyance  or  devise  for 
the  support  of  a  priest  to  continue  an  olnt  or  nnnivcrsanj  for- 
ever, was  declared  absolutely  void.  The  Chantries  were  little 
chapels  or  altars  in  a  church,  endowed  with  revenues  for 


General  Provisions  under  Act  of  1813,  etc.      181 

the  maintenance  of  a  priest  to  pray  for  the  sonl  of  the 
founder  and  deliverance  from  purgatory.  Anniversaries 
and  obits  were  the  offices  used  on  sucli  occasions,  the  former 
every  day,  and  the  latter  at  the  end  of  the  year.^ 

Under  this  statute  various  cases  were  decided  separating 
the  good  from  the  superstitious  use.  Thus  in  the  Cloth- 
workers'  case  (Moore's  Rep.  654),  there  was  a  devise  of 
land,  to  give  <£3  Qs.  to  the  poor,  a  provision  for  an  obit^ 
and  the  remainder  to  maintain  the  edifices  and  ornaments 
of  the  church.  Adjudged  that  the  king  should  not  have 
the  land,  because  where  good  uses  are  mixed  with  an  ohit, 
aniuversanj,  liglit  or  ?«iup,  the  land  is  preserved  for  the  good 
uses,  and  the  gift /or  superstition  is  nought.  See  also  Com- 
berton's  case  and  Rosse's  case,  cited  Hoffman's  Chan.  Rep., 
250,  251. 

Now  in  the  year  1700  the  Colonial  Assembly  passed  the 
severe  act  against  Jesuits  and  Popish  priests  before  cited. 
{Ante,  chap.  9,  §  1.)  It  is  reasonable  to  conclude  that  if 
the  opinion  had  not  been  that  such  acts  as  we  have  noticed 
were  in  force,  the  legislature  would  have  carried  out  their 
hostility  to  the  Papists  by  reeuacting  them.  Manifestly 
such  statutes  would  be  deemed  applicable  to  the  situation 
of  a  colony,  where  such  hatred  of  Romish  doctrines  and 
observances  existed. 

(6.)  Between  the  43  of  Elizabeth  (1602),  and  the  9  of 
George  II.  (1734),  devises  for  purposes  within  the  first- 
named  act  were  valid.  No  point  is  better  settled  than  this, 
that  the  statute  of  Elizabeth  operated  as  a  partial  repeal  of 
the  exception  in  the  Statute  of  Wills  of  Henry  VIII.  and 
enabled  a  devisor  to  limit  and  appoint  lands  for  any  object 
enumerated,  or  within  tlie  intendment  of  the  act.  (Grant 
on  Corporations,  p.  115,  and  the  several  cases  cited  in  Wright 
V.  The  Methodist  Church,  Hoffman's  Ch.  Rep.  262.) 

(7.)  But  the  act  of  9  George  II.  (1734)  prohibited  alien- 
ations (devises  among  them)  to  bodies  corporate,  or  any 
charge  upon  land  for  the  benefit  of  any  charitable  use,  un- 
less by  deed  executed  twelve  calendar  months   before  the 

-  Burns'  Ecclesiastical  Law,  vol.  i.  p.  53. 


182    Ecclesiastical  Law  in  the  State  of  Neiv   York. 

death  of  tlie  donor  and  grantor,  and  enrolled  in  the  enroll- 
ment office  of  the  Court  of  Chancery  within  six  months 
after  its  execution.  Every  gift,  etc.,  not  so  enrolled  was 
absolutely  void. 

This  act  could  be  taken  advantage  of  by  heirs.  One  evil 
leading"  to  its  passage  is  recited,  as  being  the  disinheritance 
of  heirs. 

But  the  decision  of  the  Master  of  the  Rolls  in  The  Attor- 
ney General  v.  Stewart  (2  Merivale's  Rep.  143),  that  this 
statute  did  not  extend  to  Granada,  or  any  other  colony,  seems 
to  me  unanswerable.  "In  its  causes,  its  objects,  its  provis- 
ions, its  qualifications,  and  its  exceptions,  it  is  a  law  wholly 
English  ;  calculated  for  purposes  of  local  policy  ;  complicated 
with  local  establishments ;  and  incapable,  without  great 
incongruity,  of  being  transferred  as  it  stands,  into  the  code 
of  any  other  country." 

See  also  The  Mayor  of  Lyons  v.  The  East  India  Company, 
Moore's  Privy  Council  Rep.  vol.  i.  p.  175. 

Again,  as  a  general  rule,  it  may  be  stated,  that  the  colo- 
nies of  England  had  the  common  law  for  their  government, 
and  such  statutes,  particularly  if  amendatory,  as  were  in 
force  at  the  time  of  their  being*  planted,  and  were  not  inap- 
plicable to  their  situation. 

And  it  may  be  regarded  as  a  rule  that  statutes  subse- 
quently passed,  did  not  extend  to  a  colony,  particularly  after 
it  has  a  legislature  of  its  own,  unless  expressly  so  declared. 
(Kent,  vol.  i.  p.  472  ;  Chalmers'  Opinions,  vol.  i.  p.  194 ; 
Smith's  History  of  New  York,  vol.  1,  p.  243  ;  Bogardus  v. 
Trinity  Church,  4  Paige's  Rep.  178.) 

I  conclude  that  under  the  statute  of  Elizabeth,  from  the 
time  that  the  English  acquired  the  colony  in  1664  (with  the 
slight  interval  from  1673  to  1674),  devises  to  relig-ious  cor- 
porations for  their  proper  purposes,  were  valid,  and  contin- 
ued to  be  so  until  the  passage  of  the  Statute  of  Wills  of 
March  3,  1787. 

Next,  by  force  of  the  fourth  section  in  the  successive 
statutes  for  incorporating  churcbes,  devises  made  to  a 
church  or  congregation  previous  to  its  incorporation  became 
valid,  and  vested  when  it  became  incorporated. 


General  Provisions  wider  Act  of  1813,  etc.      183 

And  as  to  clevises  after  the  incorporation  of  a  church,  and 
after  the  Act  of  March  3,  1787,  to  such  corporations,  they 
were  absohitely  void.  And  this  continued  to  be  the  law 
until  the  Act  of  1860,  hereafter  noticed. 

It  is  fully  settled,  that  the  general  words  in  statutes  for 
the  incorporation  of  religious  societies,  enabling  them  to 
take,  receive,  purchase  and  acquire,  and  hold  real  estate,  are 
not  sufficient  to  authorize  the  taking  by  devise  so  as  to  re- 
peal the  Statute  of  Wills.  (McCartee  v.  The  Orphan  Asy- 
lum, 9  Cowen ;  Downing  v.  Marshall,  23  N.  Y.  Rep.  383 ; 
s.  c.  24  Howard's  Pr.  Rep.  10.)  This  rule  applies  to  the 
same  and  similar  language  in  royal  charters. 

Lastly,  it  must  be  considered  as  finally  determined,  that 
the  law  of  charitable  uses,  either  as  found  in  the  common 
law,  whatever  that  was,  or  in  the  statute  of  Elizabeth,  has 
uo  force  in  the  State  of  New  York ;  clearly  none  since  the 
Revised  Statutes  of  1830.  All  that  exists  of  that  law  is  to 
be  found  in  special  charters,  or  special  or  general  acts  of 
the  legislature.  (Levy  v.  Levy,  33  N.  Y.  Rep.  77 ;  Bascom 
V.  Alljertson,  34  ibid.  584 ;  Goddard  v.  Pomeroy,  36  Bar- 
bour, 540.) 

In  the  case  of  McCaughall  v.  Ryan  (27  Barbour,  376), 
there  was  a  devise  in  1842  of  all  the  testator's  real  and 
personal  estate,  to  the  Right  Rev.  Bishop  Hughes  of  the 
city  of  New  York,  in  trust  for  the  use  and  benefit  of  the 
Roman  Catholic  Church  of  the  State  of  New  York.  The 
Bishop,  in  1846  and  1850,  conveyed  the  premises,  by  sepa- 
rate parcels,  to  the  defendants.  In  1853,  the  legislature 
vested  in  the  plaintiff  all  the  title  of  the  State  to  the  prop- 
erty acquired  by  escheat. 

It  was  held  to  be  an  attempt  to  create  a  trust  more  ex- 
tensive than  the  Revised  Statutes  permitted,  and  to  be  void. 

Mr.  Justice  Emmott,  dissenting  from  the  \dews  of  Mr. 
Justice  Strong  in  that  particular,  held,  that  a  corporation 
sole  was  not  known  to  our  law.  The  title,  Right  Rev.  Bish- 
op Hughes,  was  a  descriptio  personw.  If  he  took  at  all,  he 
took  as  trustee  upon  the  trusts  of  the  will.  If  they  were 
Toid,  the  devise  must  fail  altogether.     The  Roman  Catholic 


184    Ecclesiastical  Law  in  the  State  of  Neiv   York. ' 

Church  ill  the  State  of  New  York,  was  not  a  corporation, 
nor  a  person  in  whom  the  title  might  vest,  passing  through 
the  trustee. 

The  Court  concurred  in  hohling  that  the  trusts  were 
against  the  Revised  Statutes,  and  the  will  void.  The  plain- 
tiffs recovered. 

And  in  King  v.  Rundle  (15  Barbour,  139),  it  was  decided, 
that  a  direction  in  a  will  to  sell  lands  and  pay  over  the 
avails  to  a  corporation  for  purposes  and  trusts,  which  in- 
volved a  perpetuity,  was  invalid. 

The  provision  of  the  Revised  Statutes  so  often  referred  to 
is,  "  that  the  corporation  must  he  expressly  authorized  hy 
its  charter  or  by  statute  to  take  by  devise."  The  evident 
meaning  is,  that  in  judg-ing  of  the  validity  of  a  devise  to  a 
corporation,  the  intent  of  the  legislature  to  enable  it  to  take 
by  devise  is  not  to  be  collected  from  probable  reasoning, 
but  that  the  necessary  authority  must  be  given  in  terms  so 
clear  and  positive,  as  not  to  admit  of  any  other  construction. 
(Ayres  v.  The  Methodist  Church,  3  Sandf.  Sup.  Ct.  Rep. 
360;  McCaughall  v.  Ryan,  27  Barbour,  377.) 

Act  of  April  13,  1860.  By  an  act  passed  April  13,  1860, 
entitled  "  An  Act  relating  to  Wills"  (Laws  of  1860,  chap. 
360),  it  is  provided  :  "  No  person  having  a  husband,  wife, 
child,  or  parent,  shall,  by  his  last  will  or  testament,  devise 
or  bequeath  to  any  benevolent,  charitable,  literary,  religious, 
or  missionary  society,  association,  or  corporation,  in  trust  or 
otherwise,  more  than  one  half  of  his  or  her  estate,  after 
payment  of  his  or  her  debts ;  and  such  devise  or  bequest 
shall  l)e  voted  to  the  extent  of  one  half  and  no  more. 

"  All  laws  and  parts  of  laws  inconsistent  with  this  act  are 
hereby  repealed." 

This  act  was  modelled  upon  an  act  of  April  17,  1848,  en- 
titled, "  An  Act  for  the  Incorporation  of  Benevolent,  Char- 
itable, Scientific,  and  Missionary  Societies."  (Laws,  1848, 
chap.  319.)  It  prohibited,  when  there  was  a  wife,  child,  or 
parent,  gifts  by  devise  of  more  than  one  quarter  of  the 
party's  estate.  It  did  include  in  its  enumeration  religious 
societies  or  corporations.     And  it  also  directed,  that  the  de- 


General  Provisions  under  Act  of  1813,  etc.      185 

vise  must  have  been  made  two  mouths  before  the  death  of 
the  testator. 

It  may  be  a  question  whether,  as  to  the  societies  named 
in  the  Act  of  1848,  this  i)rovision  is  repealed.  The  author 
presumes  it  is  so.  But  as  relujions  societies  are  for  the  first 
time  mentioned  in  the  Act  of  1860,  which  does  not  contain 
such  clause,  it  cannot  be  in  force  as  to  them. 

In  Beekman  v.  The  People  (27  Barbour's  Rep.  304),  the 
Act  of  1848  was  commented  upon,  and  considered  as  the 
latest  legislation  upon  the  subject  of  mortmain. 

§  5.  Repainng  and  Altering.  "  The  trustees  are  author- 
ized to  repair  and  alter  their  meeting-houses,  and  to  erect 
others  if  necessary;  and  to  erect  dwelling-houses  for  the 
use  of  their  ministers,  and  school-houses,  and  other  build- 
ing's for  the  use  of  such  church,  congregation,  or  society," 
(§  4  of  Act  of  April  5,  1813.) 

The  repairing  and  altering  of  churches  is  thus  placed  in 
the  hands  of  the  trustees ;  and  no  act  or  assent  of  the  cor- 
porators is  necessary. 

The  clause  as  to  erecting  other  churches  if  necessary,  is 
very  broad.  It  comprises,  of  course,  the  case  of  a  new 
erection  on  the  same  ground,  when  a  former  edifice  has 
been  destroyed  or  become  decayed.  It  has  been  also  held, 
that  the  trustees  have  power  to  remove  the  church  from  one 
lot  to  another,  or  from  one  village  to  another,  without  ap- 
plication to  the  court  for  permission.  (Matter  of  the  Sec- 
ond Baptist  Society,  20  Howard  Pr.  Rep.  324.) 

It  might  seem  to  warrant  the  building  of  additional 
churches ;  but  as  another  statute  gives  the  authority  to 
erect  chapels,  etc.,  it  is  needless  to  resort  to  this  clause  for 
po^ver.     {Post,  chapter  18.) 

By  the  English  law,  if  a  church  be  so  much  out  of  repair, 
that  it  is  necessary  to  pull  it  down ;  or  is  so  little,  that  it 
needs  to  be  enlarged,  the  major  part  of  the  parishioners, 
with  the  consent  of  the  Ordinary,  and  meeting  upon  due 
notice,  may  make  a  rate  for  new  building  and  enlarging  the 
church.  The  church-wardens  are  to  take  care  that  public 
notice  be  given  in  the  church  for  a  general  vestry  of  the 


186    Ecclesiastical  Laio  in  the  State  of  New   York. 

whole  parish  for  that  purpose ;  which  notice  should  he  at- 
tested and  preserved,  as  the  foundation  of  all  the  subsequent 
proceeding's.  At  the  time  and  place,  the  minister  and 
church-wardens  should  attend ;  and  when  the  parishioners 
are  assembled  the  minister  is  to  preside.  He  or  one  of  the 
church-wardens,  or  such  person  as  shall  be  appointed  by 
them,  ought  to  enter  the  orders  of  the  vestry,  and  then  to 
have  them  read  and  signed.  Then  a  petition  to  the  Ordi- 
nary is  to  be  made  for  a  faculty.  He  cites  the  parties  con- 
cerned to  show  cause,  and  in  his  discretion  grants  the  fac- 
ulty.    (Burns'  Ecc.  Law,  vol.  i.  p.  357.) 

The  erection  of  dwelling-houses  for  the  use  of  the  minis- 
ter, and  of  school-houses,  is  subservient  to  the  authority  to 
acquire  and  hold  land.  It  cannot  authorize  the  purchase 
of  land  for  such  purposes  beyond  the  limit  prescribed  as 
annual  income. 

§  6.  Powers  of  Trustees.  Such  trustees  shall  have  pow- 
er— 

(1.)  To  make  rules  and  orders  for  managing  the  temporal 
affairs  of  such  church,  congregation,  or  society. 

(2.)  To  dispose  of  all  moneys  belonging  thereto. 

(3.)  To  regulate  and  order  the  renting  of  the  pews  in 
their  churches  and  meeting-houses. 

(4.)  And  the  perquisites  of  the  breaking  of  the  ground 
in  the  cemetery,  or  church-yard,  and  in  the  said  churches 
and  meeting-houses,  for  burying  of  the  dead. 

(5.)  And  all  other  matters  relating  to  the  temporal  con- 
cerns and  revenues  of  such  church,  congregation,  or  society. 
(§  4  of  Act  of  1813.) 

The  power  to  make  rules  or  by-laws  for  carrying  out  the 
objects  of  a  corporation  is  incident  to  its  creation,  without 
formal  words  conferring  it.  (19  Wendell,  37.)  But  two 
great  rules  of  law  must  be  observed. 

The  by-laws  must  be  consistent  with  the  provisions  of  the 
charter,  and  necessary  or  convenient  to  carry  out  the  pur- 
poses of  its  creation  ;  and  must  not  be  at  variance  with  the 
law  of  the  land. 

A  provision  of  the  Revised  Statutes  of  New  York  ex- 


General  Provisions  under  Act  of  1813,  etc.      187 

presses  the  rule.  "  A  corporation  has  power  to  make  by- 
laws, not  inconsistent  with  any  existing-  hiw,  for  the  manage- 
ment of  its  property,  and  the  reguhition  of  its  aifairs."  (I 
R.  S.  p.  600.) 

I  cite  a  few  cases  exeniplilying-  this  power. 

In  The  King  v.  Beton  (Burrows'  Rep.  2260),  the  freemen 
of  the  town  entitled  to  votes  and  town  privileges,  were  by 
charter  and  settled  usage,  those  entitled  by  birth,  servitude, 
or  election  in  a  certain  manner.  Full  power  was  gi^  en  to 
make  by-laws  for  the  good  government  of  the  corporation. 
An  ordinance  was  adopted,  that  persons  might  be  admitted 
(not  entitled  by  birth  or  servitude,  or  elected  in  the  mode 
prescribed,)  npon  payment  of  the  sum  of  ten  pounds,  or 
less  under  certain  circumstances.  On  quo  warranto  against 
the  mayor  and  town  clerk,  it  was  held,  that  this  by-law  was 
an  alteration  of  the  constitution  given  by  the  Crown,  and 
void. 

In  The  Commonwealth  v,  Cain  (5  Serg.  &  Rawle,  Penn. 
Rep.  510),  the  charter  of  a  church  corporation  authorized 
the  minister,  church-wardens,  and  vestrymen  to  make  rules, 
by-laws,  and  ordinances,  and  transact  everything  requisite 
for  the  good  government  and  support  of  the  church,  and 
directed  also,  that  the  election  of  ministers,  etc.,  should  be 
conducted  according  to  certain  rules ;  one  of  which  was, 
that  no  persons  were  to  vote,  except  those  who  had  been 
regularly  admitted  and  meml)ers  of  the  church  for  twelve 
months  previous  to  the  election.  A  by-law,  enacting  that 
no  member  whose  pew-rent  was  in  arrear  for  a  longer  time 
than  two  years  should  be  entitled  to  vote  for  officers,  was 
held  valid. 

In  Taylor  v.  Griswold  (2  Green's  N.  Jersey  Rep.  223),  the 
Chief  Justice  said :  "  The  incidental  power  of  making  by- 
laws is  limited  not  only  by  the  terms  of  the  charter,  but  by 
the  spirit  and  design  of  the  charter,  the  purpose  for  which 
it  was  created,  the  object  which  the  Crown  or  the  Legisla- 
ture had  in  view,  and  the  general  principles  and  policy  of 
the  common  law."  A  by-law  authorizing  a  vote  by  proxy, 
was  void  without  legislative  sanction. 


188    Ecclesiastical  Law  in  the  State  of  Neio   York. 

See  also  The  Vestry  of  St.  Luke's  v.  Mathews,  4  Dess. 
Rep.  S.  C.  578. 

By-hiws,  duly  passed  under  a  law  of  the  legislature  con- 
ferring the  power  to  make  them,  and  properly  relating  to 
corporate  purposes,  have  the  same  force  as  if  they  were 
enacted  by  the  legislature.  (McDermott  v.  The  Board  of 
Police,  5  Abbott's  Rep.  422 ;  Brick  Presbyterian  Church  v. 
The  Mayor,  etc.,  5  Cowen,  388.) 

§  7.  Appointment  of  Clerl',  etc.  "  The  trustees  may  appoint 
a  clerk  and  treasurer  of  their  board,  and  a  collector  to  col- 
lect and  receive  the  said  rents  and  revenues,  and  may  regu- 
late the  fees  to  be  allowed  to  such  clerk,  treasurer,  and  col- 
lector, and  them  or  either  of  them  may  remove  at  pleasure, 
and  appoint  others  in  their  stead.  Such  clerk  shall  enter 
all  rules  and  orders  made  by  such  trustees,  and  payments 
ordered  by  them,  in  a  book  to  be  provided  by  them  for  such 
purpose."     (§  4  of  Act  of  1813.) 

In  the  case  of  The  South  Baptist  Church  v.  Tracy,  April 
5,  1842,  before  the  author  as  Assistant  Vice-Chancellor,  the 
defendant  was  sued  as  treasurer,  for  an  account,  and  to 
compel  the  surrender  of  books  in  his  hands.  He  insisted 
that  he  was  still  the  lawful  treasurer,  not  having  been  le- 
gally removed  ;  and  also  that  he  was  a  creditor.  The  first 
question  was,  whether  the  resolution  of  removal  had  been 
legally  passed.  The  act  authorized  a  removal  at  the  pleas- 
ure of  the  trustees.  The  Court  thought,  that  it  would  be 
difficult  to  imagine  a  case  in  which  that  power  could  be  in- 
terfered with,  however  wantonly  exercised.  The  case  cited 
from  Hopkins'  Rep.  279,  treated  the  power  as  arbitrary,  but 
did  not  question  its  existence. 

It  was  said  that  the  resolution  was  not  legally  passed, 
because  two  of  the  trustees  were  not  eligible  ;  or  if  eligible, 
had  forfeited  their  places  by  leaving  the  church  and  con- 
necting themselves  with  another. 

It  was  held,  that  under  the  sixth  section,  strictly  consid- 
ered, no  qualification  was  prescribed,  and  one  who  had  never 
been  connected  with  the  church  might  be  chosen.  But  if 
this  section  was  to  be  explained  by  the  third,  then  it  was 


General  Provisions  under  Act  of  1813,  etc.      189 

only  necessary  to  be  "  a  discreet  person  of  the  clinrch,  con- 
gregation, or  society."  The  party  had  continned  to  pay  for 
a  pew,  and  occasionally  occupied  it,  though  generally  he 
worshiped  at  another  place,  and  meant  at  an  ensuing  day  to 
leave  the  church  altogether.  He  was  considered  as  not 
having  ceased  to  be  a  trustee. 

It  was  held  also,  that  if  this  was  doubtful,  yet  the  certifi- 
cate of  election  was,  as  to  such  collateral  matters,  conclu- 
sive. (Trustees  v.  Vernon  Society,  6  Cowen,  23 ;  All  Saints 
Church  V.  Lovell,  1  Hall's  Rep.  198.) 

§  8.  Beduction  of  Trustees.  Whenever  any  religions  cor- 
poration within  this  State,  other  than  the  chartered  corpo- 
rations, shall  deem  it  necessary  and  for  the  interest  of  such 
religious  corporations,  to  reduce  their  number  of  trustees,  it 
shall  and  may  be  lawful  for  any  such  religious  corporation 
to  reduce  their  number  of  trustees  at  any  annual  meeting. 
Provided,  that  such  reduction  shall  not  be  such  as  to  have 
{leave)  a  less  number  than  three  trustees  in  any  one  of 
the  said  religious  corporations.  (§  9  of  Act  of  April  5, 
1813.) 

It  may  be  doubted  whether  this  provision  is  applicable  to 
Episcopal  churches  organized  under  the  first  section  of  the 
statute.  Two  wardens  and  eight  vestrymen  are  the  trust- 
ees of  such  a  church,  and  are  part  of  its  settled  ecclesias- 
tical organization.  Neither  does  it  seem  applicable  to  the 
Dutch  Reformed  Church  and  its  peculiar  system. 

The  chartered  corjjorations  referred  to  in  this  section  are, 
no  doubt,  the  corporations  which  had  received  charters 
under  the  colonial  Governors,  or  by  special  statutes.  The 
number  of  trustees,  etc.,  must  be  g'overued  by  the  provisions 
of  such  charters. 

§  9.  (1.)  The  treasurer  of  any  religious  corporation  singly, 
or  the  trustees,  or  persons  entrusted  with  the  care  and  man- 
agement of  the  temporalities  of  any  church  or  religious 
society  already  incorporated,  by  virtue  of  any  act  of  the 
legislature,  or  which  may  hereafter  be  incorporated  in  the 
cities  of  New  York,  Albany,  or  Schenectady,  or  a  majority 
of  them  respectively,  shall,  once  in  every  three  years,  and 


190    Ecclesiastical  Laiu  in  the  State  of  Neiv   YorJc. 

between  the  first  day  of  January  and  the  first  day  of  April, 
triennially,  to  he  computed  from  the  first  day  of  January 
last,  exhibit  upon  oath  to  the  Chancellor,  or  to  one  of  the 
justices  of  the  Supreme  Court,  or  any  of  the  judg-es  of  the 
Court  of  Common  Pleas,  in  the  county  where  such  church, 
congregation,  or  society  shall  be  situated,  an  account  and 
inventory  of  all  the  estate,  both  real  and  personal,  belong- 
ing at  the  time  of  making  such  oath,  to  the  church,  con- 
gregation, or  society,  for  which  they  respectively  are  trust- 
ees or  managers  as  aforesaid,  together  with  an  account  of 
the  annual  revenue  arising  therefrom ;  and  if  any  such 
trustees  or  persons  entrusted  as  aforesaid,  shall  neglect  to 
exhibit  such  account  and  inventory  for  the  space  of  six 
years  after  the  expiration  of  every  three  years  as  aforesaid, 
and  shall  not  then  exhibit  the  same,  and  procure  a  certifi- 
cate to  be  endorsed  thereon  by  the  Chancellor  or  judge, 
that  he  is  satisfied  that  the  annual  revenue  arising  from  the 
real  and  personal  estate  of  such  corporation  does  not,  nor  has 
not  for  the  six  preceding  years,  exceeded  the  sum  which  by 
law  it  is  allowed  to  receive,  then  such  trustees  or  persons 
entrusted  as  aforesaid,  shall  cease  to  be  a  body  corporate. 
(§  10  of  Act  of  April  5,  1813.) 

(2.)  In  every  case  wliere  it  shall  appear  from  such  ac- 
count and  inventory  that  the  annual  revenue  of  any  such 
church,  congregation,  or  religious  society  in  either  of  the 
said  cities,  exceeds  the  sum  which,  by  virtue  of  any  charter 
or  law,  they  may  or  can  respectively  hold  and  enjoy,  it  sliall 
be  the  duty  of  the  Chancellor,  justice,  or  judge,  before 
whom  the  same  shall  be  so  exhibited,  to  report  the  same, 
together  with  such  account  and  inventory,  to  the  legislature 
at  their  next  meeting.     (Ibid.) 

§  10.  Every  corporation  of  any  church,  congregation,  or 
religious  society  heretofore  made  in  pursuance  of  any  law 
of  this  State,  and  in  conformity  to  the  directions  contained 
in  this  act,  shall  be,  and  the  same  is  hereby  esta])lished  and 
confirmed,  and  such  corporation  shall  be  deemed  to  have 
commenced  from  the  time  of  recording  such  certificate  as 
aforesaid.     (§  13  of  Act  of  April  5,  1813.) 


General  Provisions  under  Act  of  1813,  cfc.      191 

§  11.  Ill  case  of  the  dissolution  of  any  such  corporation, 
or  of  any  corporation  hereafter  to  be  formed  in  pursuance 
of  this  act,  by  reason  of  a  non-compliance  with  the  direc- 
tions herein  contained,  the  same  may  be  re-incorporated  in 
the  manner  prescribed  in  this  act,  at  any  time  within  six 
years  after  such  dissolution ;  and  thereupon  all  the  estate, 
real  and  personal,  formerly  belonging  to  the  same,  shall 
vest  in  such  corporation,  as  if  the  same  had  not  been  dis- 
solved. Provided,  that  in  such  case  the  said  account  and 
inventory  required  to  be  exhibited  by  such  corporation,  in 
the  cities  of  New  York,  Albany,  and  Schenectady,  shall  l)e 
exhibited  within  one  month  after  such  re-incorporation,  and 
triennially  thereafter  as  above  directed.     (Ibid.) 

§  12.  Certain  Neglects  no  Dissolution.  No  religious  cor- 
poration shall  be  deemed  to  be  dissolved  for  any  neglect 
hitherto  to  exhibit  an  account  or  inventory  of  its  real  or 
personal  estate  and  the  annual  income  thereof,  or  for  having 
held,  or  hereafter  holding,  elections  of  church  oflicers  on 
days  before  or  after  any  movable  feast  observed  by  such 
church,  the  intervening  time  between  such  elections  being 
more  than  a  solar  year.  Provided,  that  such  account  or  in- 
ventory shall  be  exhibited  within  two  years  after  the  passing 
of  this  act,  and  that  previous  public  notice  be  given  to  the 
congregation  of  the  time  and  place  for  holding  such  elec- 
tions.    (Ibid.  §  15.) 

§  13.  Whenever  any  religious  corporation  shall  be  dis- 
solved by  reason  of  any  non-user  or  neglect  to  exercise  any 
of  the  powers  necessary  for  its  preservation,  it  shall  be  law- 
ful for  the  religious  society  which  was  connected  with  such 
corporation  to  re-incorporate  itself  in  the  mode  prescribed 
by  this  act;  and  that  thereupon  all  the  real  and  personal 
property  which  did  belong  to  such  dissolved  corporation  at 
the  time  of  its  dissolution,  shall  vest  in  such  new  corpora- 
tion for  the  said  society.     (Ibid.  §  16.) 

§  14.  Whenever  there  shall  have  been  any  omission  or 
neglect  of  any  church,  congregation,  or  religious  society,  at 
their  stated  annual  meetings,  to  choose  any  of  the  trustees, 
church-wardens,  vestrymen,  or  other  officers,  according  to 


192    Ecclesiastical  Law  in  the  State  of  New  York. 

the  provisions  of  the  act  hereby  amended,  such  church, 
congregation,  or  religious  society  shall  not  be  deemed  or 
taken  to  have  been  thereby  dissolved;  but  the  trustees, 
church-wardens,  vestrymen,  or  other  officers,  then  in  office 
at  the  time  of  such  omission,  shall  be  deemed  and  taken  to 
be  the  legal  officers  of  such  church,  congregation,  or  soci- 
ety. Provided,  that  elections  to  supply  such  omissions  shall 
be  made  within  one  year  after  the  passing  of  this  act.  (§  2 
of  Act  of  February  15,  1826,  chap.  47.)     See  next  section. 

§  15.  Omission  to  Elect.  Whenever  there  shall  have  been 
any  omission  or  neglect  of  any  church,  congregation,  or 
religious  society,  at  their  stated  annual  meeting,  to  choose 
any  of  the  trustees,  church-wardens,  vestrymen,  or  other 
officers,  such  church,  congregation,  or  religious  society 
shall  not  be  deemed  or  taken  to  have  been  thereby  dis- 
solved; but  the  trustees,  church-wardens,  vestrymen,  or 
other  officers,  in  office  at  the  time  of  such  omission,  shall  be 
deemed  and  taken  to  be  the  legal  officers  of  such  church, 
congregation,  or  society,  and  shall  continue  to  hold  their 
offices  until  others  be  chosen  in  their  stead.  Provided,  that 
elections  to  supply  such  omissions  shall  be  made  within  one 
year  after  their  occurrence  respectively,  or  within  one  year 
after  the  passage  of  this  act.  (§  3  of  Act  of  1844,  chap. 
158.  "  An  Act  to  amend  an  Act  entitled,  '  An  Act  to  pro- 
vide for  the  Incorporation  of  Religious  Societies,'  passed 
April  5,  1813.") 

§  16,  No  church  or  religious  society  now  incorporated 
shall  be  deemed  dissolved,  nor  shall  any  of  its  rights  or 
privileges  be  impaired  or  affected  by  reason  of  the  trustees, 
or  other  persons  entrusted  with  the  management  of  its 
temporalities,  having  omitted  to  exhibit  an  account  and  in- 
ventory of  the  real  and  personal  estate  belonging  to  such 
church  or  society,  or  of  the  annual  revenue  or  income  arising 
therefrom.  And  any  forfeiture  incurred  by  reason  of  any 
such  omission  is  hereby  waived  and  discharged  ;  and  no 
such  account  or  inventory  shall  hereafter  be  required  from 
any  incorporated  church  or  religicms  society,  unless  the 
annual  income  of  its  property  shall  exceed  six  thousand 
dollars.     (§  1  of  Act  of  March  30,  1850,  chap.  122.) 


General  Provisions  under  Act  of  1813,  civ.      193 

The  subject  of  a  clissolutiou  of  a  corporation  under  the 
preceding  sections  presents  several  points,  some  of  diffi- 
culty. 

Suppose  the  case  of  an  election  wholly  omitted  on  the  ap- 
pointed day,  and  none  held  within  the  ensuing  year,  is  the 
corporation  de  facto  dissolved,  so  that  it  could  be  taken  ad- 
vantage of  collaterally ;  so  that  a  deed  to  it  by  its  corporate 
name  would  not  take  effect. 

There  is  a  class  of  cases  holding  that  certain  acts  of 
omission,  misuser,  or  abuse  of  powers  and  franchises  furnish 
grounds  for  a  judicial  declaration  of  forfeiture  and  dissolu- 
tion, but  do  not  of  themselves  produce  such  effect. 

Thus  in  Kondon  v.  Vanmore  (12  Modern,  274),  a  char- 
ter was  granted  upon  a  condition  which  the  corporation 
neglected  to  perform,  to  the  public  inconvenience.  It  was 
held,  that  it  could  be  repealed  by  scire  facuis. 

So  in  The  King  v.  Pasmore,  3  T.  R.  242,  an  abuse  of  the 
powers  of  the  corporation  justified  a  repeal  of  the  charter 
by  scire  facias,  which  was  declared  to  be  the  only  way  of 
taking  advantage  of  it. 

In  our  own  courts,  the  cases  of  The  People  v.  Runkle, 
(9  John.  Rep.  147) ;  The  Attorney-General  v.  The  Bank  of 
Niagara  (Hopkins'  Rep.  301) ;  Slee  v.  Bloom  (5  Johns.  Ch. 
Rep.  379)  ;  aud  The  Trustees  of  Vernon  v.  Hills  (6  Cowen, 
23),  are  leading  cases.  They  establish  the  general  rule, 
that  for  mis-user  or  non-user  of  franchises,  there  must  be  a 
judgment  of  forfeiture. 

Still,  where  the  language  of  a  statute  is,  that  upon  the 
omission  of  an  act  prescribed,  the  corporation  "  shall  be 
deemed  dissolved,"  or  "  shall  cease  to  be,"  or  "  shall  not 
be  deemed  dissolved,"  provided  an  act  is  done  within  a 
certain  time,  it  does  not  seem  certain  that  these  authori- 
ties apply.  And  particularly  is  the  doubt  increased  if  the 
neglect  is  of  an  act  essential  to  keep  up  the  corporate 
existence. 

In  The  Corporation  of  Bunbury  (10  Modern,  346),  the 
Court  say :  "  If  a  Mayor  be  not  chosen  at  the  time  pre- 
scribed by  the  charter,  and  there  be  no  provision  for  the  old 

13 


194    Ecclesiastical  Laiu  in  the  State  of  New   York. 

Mayor  contiuuiug  on  until  a  new  one  is  chosen,  the  corpo- 
ration is  dissolved,  and  cannot  proceed  to  a  new  election." 

In  Phillips  V.  Wickham  (1  Paige's  Rep.  590),  the  Chan- 
cellor held,  that  if  a  corporation  consists  of  several  integral 
parts,  and  some  of  those  are  gone,  and  the  remaining  parts 
have  no  power  to  supply  the  deficiency,  the  corporation  is 
dissolved. 

If  the  corporators  have  the  power  in  themselves  to  sup- 
ply the  deficiency  in  their  body,  their  rights  are  not  ex- 
tinguished, hut  only  dormant.  If,  however,  that  power  is 
gone,  and  they  cannot  act  until  the  deficiency  is  supplied, 
the  corporation  is  dissolved.  In  the  language  of  Lord 
Macclesfield,  "  this  is  not  a  forfeiture  by  non-user,  but  is  a 
consequence  of  law.  The  corporation  is  dead,  and  not  barely 
asleep." 

It  may  be  argued,  that  the  power  of  self-continuance  is  a 
common  law  attribute  of  a  corporation,  and  while  there  are 
corporators,  the  power  of  choosing  officers  resides  in  them. 
But  when  the  legislature  fixes  a  time  for  an  election,  and 
specially  extends  that  time  with  a  provision  that  the  cor- 
poration shall  not  be  deemed  dissolved,  if  an  election  is 
had  within  the  extended  time,  the  inference  is  very  strong, 
that  it  will  be  dissolved  if  wholly  neglected  beyond  such 
time. 

The  provisions  of  the  Act  of  1844  {ante,  §  15),  contem- 
plate, by  the  most  natural  version,  an  omission  to  choose 
any  of  the  trustees,  etc.,  —  an  omission  to  hold  an  election. 
But  I  apprehend  that  this  is  not  the  only  case  provided  for. 
If  there  should  be  a  tie  vote  upon  a  whole  ticket,  the  elec- 
tion would  foil.  There  would  be  an  omission  to  choose,  and 
the  former  trustees  would  hold  over  until  an  actual  election 
had  within  a  year.  In  the  case  of  St.  Philip's  Church,  April, 
1863,  such  a  state  of  facts  occurred,  and  the  above  was  the 
conclusion  of  Mr.  Duuscomb  and  the  author. 

Another  case  may  occur.  The  choice  may  be  perfect  as 
to  a  certain  number  of  trustees.  Suppose  five  vestrymen 
were  duly  chosen,  and  three  not.  There  would  be  an  omis- 
sion to  choose  some  trustees.     The  language  is,  "  An  omis- 


General  Provisions  under  Act  of  1813,  etc.      195 

sion  to  choose  any  of  the  trustees,  vestrymen,  etc."     The 
statute  in  its  terms  seems  to  include  such  a  case. 

But  here  some  distinctions  naturally  arise.  If,  in  the 
case  supposed,  the  five  persons  chosen  were  former  trustees, 
(vestrymen,  for  example,  reelected),  the  remaining'  three  of 
the  old  vestrymen  hold  over  until  an  election  within  the 
year.  And  so  if  a  lesser  number  chosen  were  former  mem- 
bers. But  suppose  five  or  a  lesser  number  duly  chosen  are 
new  members,  how  is  it  to  be  determined  which  of  the  old 
members  hold  over,  so  as  to  form  the  board  or  vestry,  and 
legally  to  exercise  the  powers  ? 

The  fixed  number  of  trustees  should  be  kept  up  to  pre- 
serve the  corporation  in  its  integrity.  There  ought  not  to 
be  less  than  the  prescribed  number,  although  a  less  number 
may  act.  The  advantage  of  the  judgment  of  all  is  contem- 
plated. There  cannot  lawfully  be  more  than  the  defined 
number. 

If,  then,  some  new  members  are  elected,  but  there  is  no 
election  as  to  the  residue,  the  election,  I  apprehend,  wholly 
fails.  There  is  an  omission  to  elect  the  whole  body,  and  no 
mode  of  selecting  some  of  the  former  to  unite  with  the  new 
members  is  provided.  There  must  be  a  new  entire  election, 
aud  all  the  old  trustees  hold  over. 

The  same  line  of  reasoning  applies,  if  some  of  the  old 
members  are  rechosen,  some  new  ones  are  elected,  but  a 
failure  to  elect  the  full  number.  It  is  impossible  to  say 
who  of  the  old  members  are  to  be  retained  to  complete  the 
body. 

§  17.  Change  of  Day  of  Elections.  It  shall  be  lawful  for 
the  members  of  any  church,  congregation,  or  society,  qual- 
ified to  vote  for  trustees,  wardens,  or  vestrymen,  or  a  major- 
ity of  them,  at  any  stated  annual  meeting  of  the  said 
members,  to  appoint  aud  fix  any  day  in  the  ensuing  year  as 
the  day  on  which  the  election  of  officers  of  such  church, 
congregation,  or  society,  shall  be  had  ;  and  the  elections 
held  on  that  day  shall  be  as  valid  to  all  intents  and  pur- 
poses, as  if  the  same  had  been  made  on  the  day  formerly 
appointed  for  that  purpose. 


196    Ecclesiastical  Laio  in  the  State  of  Neiv   YorJc. 

And  in  case  elections  shall  not  be  held  on  the  day  so  ap- 
pointed, it  shall  he  the  duty  of  the  trustees,  church-wardens, 
or  vestrymen,  then  in  office,  to  give  the  notice  prescribed  in 
the  first  section  of  this  act,  and  to  proceed  according-  to  the 
provisions  thereof,  to  an  election  to  supi)ly  all  vacancies  then 
existing.     (§  3  of  Act  of  February  15,  1826,  chap.  47.) 

The  first  section  of  this  Act  of  1826  is  cited  ante,  chap- 
ter 15,  §  14. 

§  18.  Change  of  Name,  (1.)  Any  religious  corporation 
incorporated  under  the  laws  of  this  State,  may  make  the 
application  for  a  change  in  its  corporate  name  in  the  man- 
ner provided  in  the  act  entitled,  "  An  Act  to  authorize  Per- 
sons to  change  their  names,"  passed  December  14,  1847, 
which  application  shall  be  made  to  any  of  the  officers  desig- 
nated in  the  first  section  of  the  said  act  within  the  county 
in  which  said  corporation  was  so  orig'inally  incorporated, 
and  is  to  be  located,  and  upon  such  proceedings,  may  obtain 
an  order  authorizing  the  assumption  by  such  corporation  of 
a  new  name,  and  upon  fully  complying  with  the  require- 
ments of  the  said  act,  shall  be  known  by  such  new  and 
assumed  name,  and  by  no  other.  (§  1  of  Act  of  June  4, 
1853,  chap.  323.  "  An  Act  to  authorize  Eeligious  Corpora- 
tions to  change  their  names.") 

(2.)  The  officer  to  whom  such  application  shall  be  made 
shall  also  be  authorized  to  grant  an  order  allowing  any  such 
religious  corporation  to  assume  such  other  and  new  name, 
not  previously  assumed  by  any  other  existing  religious  cor- 
poration, on  being  satisfied  by  the  petition  presented  to  him 
therefor,  verified  by  oath  or  affidavit,  that  the  name  of  such 
corporation,  by  reason  of  the  change  of  its  location  or  place 
of  worship,  or  of  the  name  of  the  place  in  which  its  place 
of  worship  is  situated,  or  any  other  change  in  the  circum- 
stances with  reference  to  which  its  name  was  adopted,  has 
become  incongruous  or  inconvenient,  or  that  the  location  or 
character  of  such  corporation  will  be  more  correctly  or  ef- 
fectually designated  by  such  change  of  name."    (Ibid.  §  2.) 

The  Act  of  December  14,  1847,  referred  to  in  the  above 
cited  act,  is  chapter  463  of  the  laws  of  that  year. 


General  Provisions  under  Act  of  1813,  etc.      197 

The  officers  to  whom  the  application  is  to  be  made  are, 
the  county  judge  of  the  county  in  which  the  applicant  re- 
sides, or  a  justice  of  the  Supreme  Court  residing  in  such 
county,  or  in  the  city  of  New  York,  to  a  justice  of  the 
Supreme  Court  residing  therein,  or  any  justice  of  the  Su- 
perior Court,  or  a  judge  of  the  Court  of  Common  Pleas  in 
such  city.     (§  1  of  the  Act  of  December  14,  1847.) 

The  application  must  he  hy  petition,  setting  forth  the 
grounds  for  the  desired  change,  and  be  verified  by  affidavit 
annexed  to  or  endorsed  thereon.  It  is  presumed  that  the 
affidavit  of  one  of  the  officers  will  be  sufficient. 

In  the  case  of  The  Church  of  the  Atonement,  December, 
1866,  an  opinion  was  given  under  this  statute  to  the  follow- 
ing effect :  — 

An  attempt  had  l)een  made  to  incorporate  the  church  by 
the  name  of  The  Milnor  Memorial  Church  of  the  City  of 
New  York,  in  November,  1865.  But  the  certificate  had 
been  recorded  in  the  clerk's  office  of  the  city  of  New  York, 
instead  of  the  register's  office.  There  was  no  corporation 
created.  Recording  in  the  wrong  office  was  the  same  as 
not  recording  at  all. 

Proceedings  had  been  taken,  and  an  order  obtained,  to 
change  the  name  to  that  of  The  Church  of  the  Atonement. 
But  the  Act  of  1853,  authorizing  a  change  of  name,  re- 
quired that  the  new  name  should  be  one  not  previously 
assumed  by  any  other  existing  religious  corporation.  There 
had  been  a  church  incorporated  with  the  same  title  in  1860. 
It  had  not  in  fact  acted  since  1862.  But  it  was  considered 
that  this  fact  of  non-user  did  not  render  the  corporation  ex- 
tinct, but  there  must  be  a  judicial  declaration  of  forfeiture. 
(Kent's  Comm.  vol.  ii.  p.  312,  Marginal ;  Wilcox  on  Corpo- 
rations, §  807  ;  Attorney-General  v.  Bank  of  Niagara,  Hop- 
kins' Rep.  361 ;  Trustees  of  Vernon  v.  Hills,  6  Cowen,  23.) 
The  provisions  of  the  Code,  §§  430,  431,  were  founded  upon 
this  principle. 

As  there  was  no  valid  incorporation  originally,  from  the 
nullity  of  the  record,  the  proceedings  and  order  to  change 
the  name  were  also  null.  They  were  also  void  because  of 
the  existence  of  a  corporation  with  the  same  name. 


198  Ecclesiastical  Laio  in  the  State  of  Neiv   York. 

The  suggestion  was  made  that  the  members  select  some 
new  title,  and  proceed  to  incorporate  themselves  anew,  as 
if  nothing  had  taken  place.  Strong  reasons  existed  against 
their  retaining  the  first  name.  These  reasons  had  induced 
the  change. 

§  19.  iS^ftfe  of  Real  Estate.  "  It  shall  be  lawful  for  the 
Chancellor  of  this  State,  upon  the  application  of  any  relig- 
ious corporation,  in  case  he  shall  deem  it  proper,  to  make 
an  order  for  the  sale  of  any  real  estate  belonging  to  such 
corporation,  and  to  direct  the  application  of  the  moneys 
arising  therefrom  by  the  said  corporation,  to  such  uses  as 
the  same  corporation,  with  the  consent  and  approbation  of 
the  Chancellor,  shall  conceive  to  be  most  for  the  interest 
of  the  society  to  which  the  real  estate  so  sold  did  belong. 
Provided,  that  this  act  shall  not  extend  to  any  of  the  lands 
granted  by  this  State  for  the  support  of  the  gospel."  (§11 
of  Act  of  April  5,  1813.) 

This  provision  is  found  for  the  first  time  in  the  Act  of 
March,  1806.     (4  Webster  and  Skinner,  360.) 

The  Supreme  Court,  since  the  amendment  of  the  Consti- 
tution in  1846,  had  succeeded  to  this  power  of  the  Chancel- 
lor, and  it  is  exercised  by  one  of  the  judges. 

By  the  30th  section  of  the  Code,  as  amended  in  1851, 
jurisdiction  is  Aested  in  the  county  courts,  as  to  the  sale 
or  mortgaging  of  real  property  of  a  religious  corporation 
situate  within  the  county,  aud  of  the  disposition  of  the  pro- 
ceeds thereof. 

It  is  recommended  in  the  present  state  of  the  law,  not  to 
apply  to  the  Court  of  Common  Pleas  in  the  city  of  New 
York,  as  a  county  court  within  this  provision  of  the  Code. 

A  question  has  arisen  whether  this  provision  is  really  a 
restriction  upon  an  otherwise  absolute  power  of  alienation, 
api)urtenant  by  the  common  law  to  a  corporation,  or  whether 
it  is  a  relaxation  of  statutory  restraints  upon  such  aliena- 
tion. In  DeKuyter  v.  The  Trustees  of  St.  Peter's  Church 
(3  Barb.  Ch.  Rep.  222),  Chancellor  Walworth  thought  the 
statutes  of  England  restricting  alienations  by  ecclesiastical 
corporations  were  in  force  here,  and   only  alienations  by 


General  Provisions  under  Act  of  1813,  etc.      199 

leases  for  three  lives  or  twenty-one  years  could  be  made 
until  the  Act  of  1806. 

The  language  of  that  act  is  almost  precisely  the  same  as 
that  of  the  present  act. 

But  notwithstanding  the  high  authority  of  the  Chancel- 
lor, this  proposition  may  be  doubted.  It  may  be  questioned 
whether  such  laws  were  applicable  to  our  situation.  The 
want  of  a  bishop  to  give  a  license  is  an  argument  against 
their  prevalence.  The  general  professional  opinion  has  been, 
that  the  provision  is  really  a  restriction  upon  the  absolute 
common-law  right  of  alienation. 

In  that  case,  there  had  been  a  special  Act  of  1817,  incor- 
porating St.  Peter's  Church,  in  the  city  of  New  York,  and 
the  right  of  selling  was  conferred  in  nearly  the  identical 
terms  used  in  the  General  Act. 

It  deserves  notice  also,  that  many  special  statutes  were 
passed  before  1806,  authorizing  religious  corporations  to 
sell  their  real  estate.  (See  Act  of  1803,  chaps.  QQ,  67  ;  of 
1804,  chap.  52  and  chap.  53.) 

In  Wyatt  v.  Benson  (23  Barbour's  Rep.  327),  it  was  held, 
that  the  application  for  the  approval  of  the  Court  of  a  sale 
of  real  estate  could  only  be  made  by  the  corporation.  The 
legally  elected  trustees  had  no  power  to  institute  or  carry 
on  proceedings  for  this  purpose  without  the  consent  of  the 
majority  of  the  corporators. 

The  corporation  is  composed  of  every  member  of  the  con- 
gregation qualified  to  vote.  The  control  of  the  temporal 
affairs  was  intended  to  be  placed  in  the  hands  of  the  major- 
ity of  the  corporators. 

An  order  of  sale,  made  on  the  petition  of  the  trustees, 
if  not  executed,  may  be  revoked  by  the  Court.  It  is  its 
duty  to  do  so  when  a  sale  is  against  the  views  of  a  large 
majority  of  the  members. 

The  question  of  the  propriety  or  expediency  of  a  sale, 
cannot  be  submitted  to  an  arbitrator,  nor  to  any  other 
tribunal  or  body  than  the  Court. 

Nor  are  corporators  bound  by  the  decision  of  an  arbitra- 
tor as  to  who  are  legally  elected  trustees. 


200    Ecclesiastical  Laiu  in  the  State  of  New   York. 

The  case  arose  under  the  third  section.  All  the  reason- 
ing of  the  Court  is  founded  upon  the  language  used  in  it 
and  on  some  special  clauses  concerning  the  particular 
church,  as  the  11th  and  14th  sections  of  the  act.  It  was 
the  case  of  a  Methodist  Episcopal  Church. 

In  the  matter  of  St.  Ann's  Church  (14  Abljott,  424),  it 
was  held  at  Special  Term  (Emmott,  Justice),  that  the  ves- 
try or  trustees  of  a  church  may  apply  to  the  Court  to  be 
allowed  to  sell  or  mortgage  its  real  property,  without  an 
express  vote  of  the  congregation.  They  represent  the  cor- 
poration, are  its  managing  agents,  and  may  act  as  fully  as 
the  directors  or  agents  of  an  ordinary  corporation  may  act 
on  its  behalf.     This  was  the  case  of  an  Episcopal  Church. 

In  the  Baptist  Society  of  Canaan  (20  Howard's  Pr.  Rep. 
324),  it  was  also  held,  that  the  trustees  could  make  tlie  ap- 
plication. These  cases  are  referred  to  and  approved  in  The 
Madison  Avenue  Baptist  Church  v.  The  Baptist  Church  in 
Oliver  Street  (Abbott's  Rep.  vol.  i.  new  series,  p.  214). 

In  the  case  of  Bowen  v.  The  Irish  Presbyterian  Church 
(6  Bosworth's  Rep.  245),  it  was  held,  that  a  religious  cor- 
poration has  power  to  make  an  executory  contract  to  sell 
real  estate  subject  to  the  action  of  the  Supreme  Court,  to 
be  conveyed  when  the  authority  of  the  Court  was  obtained. 
If  such  authority  is  obtained,  on  due  petition  for  that  pur- 
pose, the  contract  will  be  binding  upon  the  corporation, 
without  further  ratification  by  it. 

It  is  not  essential  that  an  order  be  obtained  before  an 
agreement  is  made.  Its  confirmation  by  the  Court  is  suffi- 
cient. 

In  making  a  sale  of  real  estate,  the  corporation  does  not 
act  in  a  ministerial  capacity  only,  executing  merely  the 
mandate  of  the  Court. 

The  fee  was  vested  in  the  corporation,  not  in  the  trustees 
as  trustees. 

It  is  indispensable  to  obtain  an  order  sanctioning  a  sale, 
but  such  order  is  permissive,  not  mandatory.  It  does  not 
compel  the  corporation  to  sell. 

It  is  the  preferable  mode  of  conducting  a  sale,  first,  to 


General  Provisions  wider  Act  of  1813,  etc.      201 

negotiate  and  agree  upon  the  terms,  and  then  to  hiy  tlie 
agreement  before  the  Court  and  obtain  its  approval,  an  au- 
thority by  order  to  convey,  and  directions  as  to  the  applica- 
tion of  the  purchase-money. 

The  production  of  an  instrument  under  the  corporate  seal, 
and  signed  by  the  proper  officers,  is  prima  facie  evidence 
of  its  due  execution  by  the  body,  and  raises  a  presump- 
tion that  it  was  duly  authorized  by  the  competent  power. 

When  the  rights  of  the  purchaser  have  become  so  far 
fixed,  that  he  holds  an  ag-reement  duly  executed  by  the  cor- 
poration, and  the  sanction  of  the  Court  has  been  obtained, 
he  can  be  compelled  to  pay  for  the  land,  and  his  title  to  a 
conveyance  is  clear,  unless  and  until  by  some  proceeding 
to  which  he  is  a  party,  that  sanction,  if  it  be  revocable,  is 
revoked. 

In  Lovett  v.  The  German  Reformed  Church  (12  Sarb. 
Rep.  67),  the  trustees  who  had  been  recognized  by  the 
Chancellor  as  the  legal  trustees  while  his  decree  stood  unre- 
versed, executed  a  mortgage  upon  property  of  the  church 
with  the  approbation  of  the  Chancellor.  The  decree  was 
afterwards  reversed,  and  the  adverse  set  of  trustees  held  to 
be  the  legal  trustees.  The  mortgag-e  was  however  sus- 
tained. They  were  trustees  defacto^  and  their  dealings  with 
third  persons  for  a  valuable  consideration  were  valid. 

The  case  of  The  Madison  Avenue  Baptist  Church  v.  The 
Baptist  Church  in  Oliver  Street  (1  Abbott's  Rep.,  new  series, 
p.  214),  involved  some  important  questions. 

The  action  was  to  recover  possession  of  a  parcel  of  ground 
in  Madison  Avenue.  The  plaintiifs  had  erected  a  church 
edifice  on  the  ground  and  occupied  it  as  a  place  of  worship. 
In  1862  proceedings  took  place  for  a  union  of  the  congre- 
gation of  this  church  with  that  of  the  congregation  known 
as  the  Baptist  Church  in  Oliver  Street.  By  the  terms  of 
union,  the  Madison  Avenue  Church  was  to  convey  its  real 
and  personal  property  to  the  Oliver  Street  Church,  the 
members  of  the  former  to  become  members  of  the  latter, 
the  services  to  be  held  in  the  Madison  Avenue  Church.  The 
trustees  of  the  Oliver  Street  Church  were  to  resign,  and  an 


202    EccledasUcal  Law  in  the  State  of  Neiv   Yorlc. 

election  to  be  held  by  the  united  cono^regations.  Measures 
were  to  be  taken  to  change  the  name  to  that  of  the  Madi- 
son Avenue  Baptist  Church.  The  real  and  personal  prop- 
erty of  both  churches  was  to  be  liable  for  the  debts  of  both. 

A  petition  was  presented  by  the  trustees  of  the  Madison 
Avenue  Baptist  Church  to  the  Supreme  Court,  setting  forth 
this  agreement,  and  stating  the  inability  of  the  church  to 
pay  their  liabilities,  or  meet  their  expenses.  It  stated  the 
plan  and  terms  agreed  upon  by  a  joint  committee  of  both 
churches,  and  that  at  a  meeting  of  the  congregation  of  the 
Madison  Avenue  Baptist  Church  duly  convened,  the  plan 
was  approved,  and  the  trustees  authorized  to  petition  the 
Court  for  an  order  sanctioning  the  conveyance  as  agreed 
upon  ;  also  that  the  report  had  been  adopted  by  the  congre- 
gation of  the  Oliver  Street  Church. 

The  petition  also  stated  that  the  latter  church  owned  prop- 
erty to  the  amount  of  from  fifty  thousand  to  sixty-five  thou- 
sand dollars  over  its  indebtedness,  which  would  be  applicable 
to  the  indebtedness  of  the  Madison  Avenue  Church.  That 
a  portion  of  the  pew-holders  had  consented  to  the  transfer 
of  the  property,  and  the  residue  were  in  favor  of  the  union. 

Upon  this  petition  an  order  was  made  authorizing  and 
directing  the  trustees  of  the  Madison  Avenue  Baptist 
Church  to  convey  the  property  to  the  Baptist  Church  in 
Oliver  Street. 

On  the  trial  a  deed  for  the  property  was  offered  in  evi- 
dence, also  the  ftict  of  the  union  of  the  two  congregations 
in  public  worship  ;  the  petition  and  order  for  the  change  of 
the  corporate  name  of  the  Oliver  Street  Church  to  that 
of  the  Madison  Avenue  Baptist  Church.  The  judge  re- 
jected the  evidence  and  rendered  judgment  for  the  plain- 
tiffs. 

On  appeal  to  the  General  Term,  it  was  held  — 

(1.)  That  the  Supreme  Court  had  the  power  to  make  an 
order  for  such  a  conveyance  upon  the  considerations  ex- 
pressed and  moving  it. 

(2.)  That  the  application  for  the  order  by  the  trustees 
was  warranted  by  the  direction  given  by  the   corporators, 


General  Provisions  under  Act  of  1813,  etc.      203 

and  was  the  same  as  if  the  members  had  signed  the  peti- 
tion. Tiie  cases  holding'  that  the  trustees  couUl  apply  with- 
out a  previous  vote  of  the  corporators  were  cited,  and 
without  disapproval.  Ajiy  opposition  on  the  part  of  corpo- 
rators would  be  attended  to. 

(3.)  It  was  unnecessary  for  the  order  to  direct  the  appli- 
cation of  the  money  arising  from  the  sale.  The  considera- 
tion of  the  conveyance  was  the  agreement  to  assume  the 
plaintiff's  debts,  to  unite  in  forming  one  church  organiza- 
tion, to  adopt  the  plaintiff' 's  corporate  name,  to  sell  their 
own  property,  etc. 

That  in  Wheaton  v.  Gates,  Judge  Denio  had  held,  that 
the  Court  had  no  authority  to  originate  any  scheme,  or  to 
execute  any  enterprise  determined  on  by  the  corporation, 
but  only  to  allow  or  disallow  the  application  of  the  moneys 
to  such  purposes  as  the  corporation  should  represent  to  be 
most  for  the  benefit  of  the  society.  Besides,  the  order  for 
a  sale  might  be  made  separately  from  the  order  directing 
the  application  of  the  proceeds,  citing*  The  Matter  of  the 
Presbyterian  Church,  3  Edw.  Rep.  155. 

(4.)  That  the  objection  that  the  transaction  had  pro- 
duced a  dissolution  of  the  plaintiff's  corporation,  and  not  a 
continuance  of  it  for  the  purposes  of  its  org*anization,  was 
not  tenable. 

A  new  trial  being  ordered,  upon  that  trial  testimony 
was  adduced  to  the  point  of  the  amount  of  debt,  and  other 
matters  of  fact  not  necessary  to  be  noticed. 

One  ruling  of  the  judge  recognized  a  well-settled  and 
important  point  of  law.  At  the  meeting  which  ratified  the 
agreement  for  a  union,  etc.,  only  twenty  corporators  were 
present,  far  less  than  a  majority,  and  it  was  insisted  that  a 
majority  must  be  present.  But  the  Court  held,  that  where 
the  corporators  are  of  an  undefined  num))er,  such  as  may 
assemble  upon  a  regndar  call  of  all,  will  constitute  a  quorum 
for  the  transaction  of  business;  and  a  majority  of  such  quo- 
rum can  pass  a  resolution,  or  take  other  action. 

\Vlieaton  v.  Gates,  which  is  referred  to  in  the  foregoing 
case,  is  reported  18  N.  Y.  Rep.  395.     It  was  decided,  that 


204  Ecclesiastical  Law  in  the  State  of  Neiu   York. 

the  Court  could  make  a  provisional  order  giving  liberty  to 
the  corporation  to  sell  its  real  estate  for  a  certain  price,  and 
for  a  legitimate  purpose.  But  it  had  no  power  to  authorize 
a  sale  for  the  purpose  of  closing  up  the  society,  and  distrib- 
uting the  proceeds  of  the  property  among  the  corporators. 

Ilortgages.  Chancellor  Kent  considered,  that  although 
the  statutes  spoke  of  sales  of  real  estate  only,  yet  that  a 
mortgagee  being"  a  conditional  sale  in  substaoce,  was  within 
it.  Applications  and  orders  for  leave  to  mortgage  have 
been  numerous.  One,  before  so  eminent  a  lawyer  as  Chan- 
cellor Jones,  was  within  the  author's  jjersonal  knowledge. 

In  The  South  Baptist  Society  v.  Clapp  (18  Barbour's  Rep. 
35),  it  was  noted,  that  the  execution  of  a  mortgage  upon 
taking  a  conveyance  of  land,  to  secure  part  of  the  purchase- 
money,  did  not  need  the  assent  of  a  judge.  The  trustees 
could  execute  it.  The  statute  was  only  applicable  when  the 
church  was  owner  of  the  real  estate. 

In  the  case  of  St.  Peter's  Church  (3  Barbour's  Ch.  Rep. 
122),  the  corporation  having  become  insolvent,  owing  a 
large  sum  besides  the  mortg-ages  on  their  property,  con- 
veyed it  to  trustees,  the  appellants,  for  payment  of  its  debts 
ratably.  After  a  full  examination,  and  a  chaug-e  of  his 
opinion  expressed  at  a  prior  stage  of  the  case,  the  Chancel- 
lor held  the  conveyance  to  be  legal  and  operative.  The 
decision  was  affirmed  in  the  Court  of  Appeals.  (3  Com- 
stock's  Rep.  p.  238.) 

In  Manning  v.  The  Moscow  Presbyterian  Society  (27 
Barbour,  52),  it  was  held,  that  a  corporation  could  mortgage 
its  property  to  secure  payment  of  a  debt  created  by  advances 
for  its  use,  without  an  order  of  the  Court.  A  mortg-ag-e 
was  not  a  sale,  either  in  the  ordinary  or  strict  legal  sense. 

But  with  respect,  this  seems  a  very  doubtful  point,  and  is 
certainly  a  dangerous  rule.  The  term  sale,  used  in  a  statute 
of  the  date  of  1806,  conveys  the  idea  of  a  transfer  of  title. 
This  was  the  original  theory  of  a  mortgage  in  the  law.  The 
mortgagee  could  take  possession.  The  owner  of  the  equity 
of  redemption,  after  forfeiture,  could  not  maintain  ejectment 
against  the  mortgagee  or  any  one  holding  under  him.     He 


General  Provisions  under  Act  of  1S13,  etc.      205 

had  only  the  rig-ht  to  redeem  in  equity.  So  formerly  the 
mortg-agee  could  bring  an  ejectment,  though  this  is  now 
prohibited  by  the  Revised  Statutes.  (Pell  v.  Ulmar,  18  N. 
Y.  Rep.  112.) 

If  the  decision  in  this  case  of  Manning  is  correct,  then 
almost  every  guard  against  alienation  and  perversion  is  lost. 
The  mortgage  for  a  debt,  one  preferred  for  example,  among 
many,  involves  the  power  to  sell,  which  may  soon  be  neces- 
sary, and  divert  the  property  to  other  uses.  Our  courts 
hold,  that  a  sale  shall  not  be  authorized  except  for  the  attain- 
ment of  the  identical  or  similar  religious  purposes  for  which 
the  property  was  originally  acquired,  and  to  which  it  was 
consecrated.  This  object  will  be  effectually  defeated.  It  is 
surely  enough  to  allow  a  conveyance  in  a  case  of  entire  in- 
solvency, for  the  proportionate  discharge  of  every  debt. 


CHAPTER  XVII. 

CHAPELS,   ASSOCIATE   CHURCHES,    ETC. 

§  1.  The  second  section  of  the  act  entitled  "  An  Act  to 
amend  the  Act  entitled  '  An  Act  to  provide  for  the  Incorpo- 
ration of  Religious  Societies,'  passed  April  5,  1813,  and  the 
several  acts  amendatory  thereof,"  passed  March  30,  1850,  is 
hereby  amended  to  read  as  follows  :  — 

(1.)  Chajjcls,  etc.  "  Whenever  any  religious  corporation, 
incorporated  under  the  act  to  provide  for  the  Incorporation 
of  Religious  Societies,  passed  April  5, 1813,  or  by  any  special 
charter,  shall  deem  it  necessary  or  expedient  for  the  accom- 
modation of  its  members,  in  consequence  of  their  number, 
or  dispersed  habitations,  or  otherwise,  to  increase  the  facili- 
ties of  public  worship,  the  vestry  or  trustees  thereof  may 
purchase  and  hold  grounds  in  the  same  village,  town  or 
city,  and  may  erect  thereon  suitable  associate  houses,  or 
churches,  or  convenient  chapels. 

(2.)  SchooJ-lwuses.  And  also,  at  the  same  time  or  there- 
after, may  purchase  and  hold  other  grounds  for  the  purpose 
and  erecting  thereon  suitable  school-houses  for  Sunday  or 
parochial  schools,  for  the  said  associate  meeting-houses  or 
churches  or  chapels ;  or  may  hire  and  purchase  and  hold 
any  such  grounds  with  suitable  buildings  already  erected 
thereon,  for  the  like  purpose,  notwithstanding  any  restric- 
tion contained  in  the  said  act,  or  in  any  such  charter. 

(3.)  And  the  persons  statedly  worshiping  in  any  such  asso- 
ciate meeting-house  or  church,  or  in  said  chapel,  may,  with 
the  consent  of  the  vestry  or  trustees  of  such  corporation, 
be  separately  organized  and  incorjiorated.  (§  1  of  Act  of 
March  30,  1850,  as  amended  by  Act  of  April  10,  1860,  chap. 
235.) 


Chapels,  Associate  Churches,  etc.  207 

§  2.  (1.)  Any  relig'ious  corporations  incorporated  under 
the  several  acts  to  provide  for  the  Incorporation  of  Relig- 
ious Societies,  passed  April  6,  1784,  March  27,  1801,  April 
5,  1813,  or  by  any  special  charter  made  or  granted  before  or 
after  July  4,  1776,  may  purchase  and  hold  grounds  in  the 
same  \dllage,  town,  or  city,  in  which  the  church  edifice  be- 
longing to  such  corporation  is  situated,  for  the  purpose  of 
erecting,  and  may  erect  and  maintain  thereon  free  churches 
or  chapels. 

(2.)  School-Jiouses.  —  Residences.  And  also,  at  the  same 
time  or  thereafter,  may  purchase  and  hold  other  grounds 
for  the  purposes  of  erecting,  and  may  erect  and  maintain 
thereon  suitable  school-houses,  for  Sunday  or  parochial 
schools,  of  the  said  free  churches  or  chapels;  and  residences 
for  the  clergy  and  teachers  in  charge  of  or  employed  iu 
such  churches,  chapels,  or  schools. 

(.3.)  Mission  Houses.  —  Hospitals.  And  also  mission- 
houses  for  the  temporary  accommodation  and  relief  of  the 
poor,  and  free  hospitals  and  asylums  for  the  relief  of  the 
sick,  aged,  and  indigent,  and  dispensaries  of  medicine  for 
the  poor. 

(4,)  Or  may  hire  and  purchase  and  hold  any  such 
grounds  with  suitable  buildings  ali-eady  erected  thereon,  for 
the  like  purposes,  notwithstanding  any  restrictions  con- 
tained in  the  said  act,  or  in  any  such  charter. 

(5.)  Control  of  such  Chapels,  etc.  And  the  vestry  or  trust- 
ees of  such  religious  corporation  may  take  the  control  and 
management  of  such  free  churches  or  chapels,  schools,  or 
mission-houses,  asylums,  dispensaries,  and  hospitals,  and 
may  appoint  and  employ  clergymen,  teachers,  and  others, 
officers,  or  persons  to  take  the  charge  and  management 
thereof.  (§  1  of  Act  of  April  23,  1867,  Laws,  chap.  654. 
An  Act  to  authorize  the  Erection  of  Free  Churches  and 
Chapels  in  certain  cases.) 

§  3.  The  seats  and  pews  in  every  church  or  chapel,  erected 
by  any  religious  corporation  under  the  provisions  of  this  act, 
shall  be  forever  free  for  occupation  and  use  during  public 
worship,  to  all  persons  conducting  themselves  with  propriety, 


208    Ecclesiastical  Lavj  in  the  Slate  of  Neio   York. 

and  under  such  rules  as  may  be  established  therefor  by  the 
parent  church ;  and  no  rent  charge,  or  exaction  shall  ever 
be  made  or  demanded  for  such  occupation  or  use.  (Ibid. 
§2.) 

§  4.  Persons  attending  public  worship  in  such  churches 
or  chapels,  or  otherwise  claiming  in  any  manner  to  be  con- 
nected therewith,  shall  not,  by  reason  of  such  attendance 
or  claim  of  any  kind,  be  entitled  to  vote  at  the  annual  elec- 
tions for  church- wardens  or  vestrymen  or  trustees,  of  the 
religious  corporation  by  which  such  churches  or  chapels 
shall  liave  been  erected  and  maintained ;  and  shall  not  have 
any  right,  claim,  or  demand,  as  corporators  in  said  parent 
church.     (Ibid.  §  3.) 

Chapels  erected  under  the  Act  of  1860,  (cited  mite,  §  1,) 
are  substantially  the  chapels  of  ease  of  the  English  law. 
(See  anie,  chapter  2.)  They  may  be  free,  or  with  purchased 
and  hired  pews,  as  the  vestry  shall  decide.  And  they  may 
l)e  separately  organized  and  incorporated,  with  the  assent 
of  the  vestry  or  trustees.  Then,  of  course,  all  connection 
with  the  parent  church  ceases. 

The  chapels  so  formed  under  the  Act  of  1867  must  be 
upon  the  free  principle.  They  are  governed  by  the  vestry 
or  trustees.  But  by  express  provision,  the  members  or 
worshipers  are  excluded  from  voting,  or  exercising  any 
rights  as  corporators  in  the  parent  church. 


CHAPTER  XVIII. 

PEEE   CHURCHES. 

§  1.  (1.)  Any  seven  or  more  persons  of  full  age,  citizens 
of  the  United  States,  and  a  majority  of  tliem  being  resi- 
dents of  this  State,  who  shall  associate  themselves  for 
the  purpose  of  founding  and  continuing  one  or  more  free 
churches,  may  make,  sign,  and  acknowledge,  before  any 
officer  authorized  to  take  the  acknowledgment  of  deeds  of 
land  to  be  recorded  in  this  State,  and  may  file  in  the  office 
of  the  Secretary  of  State,  and  also  of  the  Clerk  of  the 
county  in  which  any  such  church  is  to  be  established,  a 
certificate  in  writing,  in  which  shall  be  stated  the  name  or 
title  by  which  such  society  shall  be  known  in  the  law,  the 
purpose  of  its  organization,  and  the  names  of  seven  trust- 
ees, of  whom  not  less  than  five  shall  be  persons  not  minis- 
ters of  the  gospel  or  priests  of  any  denomination,  to  manage 
the  same. 

(2.)  Such  certificate  shall  not  be  filed  unless  with  the 
written  consent  and  approbation  of  a  justice  of  the  Supreme 
Court  of  the  district  in  which  any  such  church  shall  be  in- 
tended to  be  established,  or  in  the  city  of  New  York,  of  a 
judge  of  the  Superior  Court  of  the  said  city,  to  be  endorsed 
on  such  certificate.  (§  1  of  Act  of  April  13,  1854,  Laws, 
chap.  218.  "  An  Act  for  the  Incorporation  of  Societies  to 
establish  Free  Churches.") 

§  2.  Upon  the  filing  of  such  certificate,  the  persons  named 
therein  and  their  successors,  being  citizens  of  the  United 
States,  and  residents  of  this  State,  shall  be  a  body  politic 
and  corporate,  with  all  the  rights,  powers,  and  duties,  and 
subject  to  all  the  restrictions  and  obligations,  and  other  pro- 
visions, so  far  as  the  same  may  be  applicable,  and  consistent 
with  this  act,  specified  and  contained  in  the  act  entitled, 

VOL.   II.  14 


210    Ecclesiastical  Law  in  the  State  of  New   York. 

"  An  Act  for  the  Incorporation  of  Benevolent,  Charitable, 
Scientific,  and  Missionary  Societies,"  passed  April  12, 1848, 
and  the  act  amending-  the  same  passed  April  7,  1849,  except 
that  the  limitation  in  the  first  of  said  acts  of  the  value  of 
the  real  estate  that  may  be  held  by  any  society  in  the  city  or 
county  of  New  York,  incorporated  under  this  act,  shall  not 
be  applicable  to  any  church  edifice  erected  or  owned  by  such 
society,  or  the  lot  of  ground  on  which  the  same  may  be  built, 
and  excejjt  that  the  provision  in  the  first  of  the  said  acts,  in 
relation  to  the  personal  liability  of  the  trustees,  shall  be 
applicable  only  to  the  trustees  who  have  assented  to  the 
creation  of  any  debt.     (Ibid.  §  2.) 

§  3.  Any  vacancies  occurring  in  the  said  board  of  trust- 
ees shall  be  supplied  by  the  remaining  trustees,  at  any  legal 
meeting  of  the  members  ;  but  there  shall  always  be  at  least 
five  members  of  the  board  who  are  not  ministers  of  the 
gospel  or  priests  of  any  denomination.     (Ibid.  §  3.) 

§  4.  (1.)  The  seats  or  pews  in  every  church  building,  or 
edifice  owned  or  occupied  by  any  corporation  organized 
under  this  act,  shall  be  forever  free  for  the  occupation  and 
use,  during  public  worship,  of  all  persons  choosing  to  oc- 
cupy the  same,  and  conducting  themselves  with  propriety ; 
and  no  rent,  charge,  or  exaction,  shall  ever  be  made  or  de- 
manded for  such  occupation  or  use. 

(2.)  Bale  of  Real  Estate.  "  Nor  shall  any  real  estate  be- 
longing to  any  such  corporation,  be  sold  or  mortgaged  by 
the  trustees  thereof,  unless  by  the  direction  of  the  Supreme 
Court,  to  be  given  in  the  same  manner,  and  in  the  like 
cases,  as  provided  by  law  in  relation  to  religious  incorpora- 
tions."    (Ibid.  §  4.) 

§  5.  The  second  section  of  the  Act  of  1854  above  cited, 
makes  free  churches  subject  to  the  provisions  of  the  Act  of 
April  12,  1848,  and  of  the  amendatory  Act  of  April  7,  1849, 
as  far  as  the  same  are  applicable  and  consistent  with  such 
Act  of  1854.  That  act  was  entitled  "  An  Act  for  the  Incor- 
poration of  Benevolent,  Charitable,  Scientific,  and  Mission- 
ary Societies." 

Corporate  Powers.    The  second  section  of  that  Act  of  1848 


Free  Churches.  211 

created  a  corporation ;  g-ave  succession,  the  rig-lit  to  sue,  the 
liability  to  suits,  the  use  of  a  common  seal,  and  the  power 
to  alter  it. 

To  hold  Real  Estate.  It  gave  also  the  power  of  taking, 
receiving,  purchasing,  and  holding  real  estate  for  the  pur- 
poses of  their  incorporation,  and  for  no  other  purpose,  to  an 
amount  not  exceeding  fifty  thousand  dollars  in  value,  and 
personal  estate,  for  the  like  purposes,  to  an  amount  not  ex- 
ceeding- seventy-five  thousand  dollars  in  value ;  but  the  clear 
annual  income  of  such  real  and  personal  estate  was  not  to 
exceed  ten  thousand  dollars. 

The  limitation  as  to  value  in  this  second  section  is  abro- 
gated in  the  Act  of  1854,  so  far  as  regards  the  church  edifice 
erected  or  owned  by  the  society,  or  the  lot  of  ground  on 
which  the  same  may  be  built. 

§  6.  By-Laws.  The  second  section  of  such  Act  of  1848 
gives  power  also  to  make  by-laws  for  the  management  of  its 
affairs,  not  inconsistent  with  the  constitution  or  laws  of  this 
State,  or  of  the  United  States,  and  to  elect  and  appoint  the 
officers  and  agents  of  such  society,  for  the  management  of 
its  ])usiness,  and  to  allow  them  a  suitable  compensation. 

These  provisions  seem  to  be  applicable  to  the  free  church- 
es established  under  the  Act  of  1854. 

The  third  section  of  this  Act  of  1848  is,  I  apprehend,  not 
applicable.  The  trustees  of  free  churches  form  the  corpo- 
ration, and  vacancies  are  supplied  by  the  remaining  trustees. 
The  succession  is  thus  continued. 

Elections.  I  apprehend  that  the  fourth  section  is  appli- 
cable. The  trustees  of  free  churches  can  appoint  days  for 
filling  vacancies  by  a  by-law,  and  if  there  is  an  omission  to 
choose  at  the  time  appointed,  "  it  shall  be  lawful  on  any 
other  day  to  hold  an  election  for  trustees,  directors,  or  man- 
agers in  such  manner  as  may  be  directed  by  the  by-laws  of 
such  society." 

A  by-law  may  then  clearly  appoint  certain  days  for  an 
election  to  fill  vacancies,  and  may  also  provide,  that  if  no 
choice  is  made  on  such  days,  an  election  may  be  held  on 
other  subsequent  specified  days. 


212    Ecelesiastical  Law  in  the  State  of  Neto   York. 

§  7.  Name.  The  fifth  section  prohibiting  the  adoption 
of  a  name  ah'eady  attached  to  another  corporate  body  may 
be  assumed  to  be  applicable. 

§  8.  The  sixth  section  of  the  Act  of  1848  is  as  follows : 
"  Any  corporation  formed  under  this  act  shall  be  capable  of 
taking*,  holding,  or  receiving  any  property,  real  or  personal, 
by  virtue  of  any  devise  or  bequest  contained  in  any  last  will 
or  testament  of  any  person  whatsoever,  the  clear  annual  in- 
come of  which  devise  or  bequest  shall  not  exceed  the  sum 
of  ten  thousand  dollars.  Provided,  that  no  person  leaving 
a  wife,  or  child,  or  parent,  shall  devise  or  bequeath  to  such 
institution  or  corporation  more  than  one  fourth  of  his  or 
her  estate,  after  payment  of  his  or  her  debts  ;  and  such 
devise  or  bequest  shall  be  valid  to  the  extent  of  such  one 
fourth. 

"  And  no  such  devise  or  bequest  shall  be  valid  in  any  will 
which  shall  not  have  been  made  and  executed,  at  least  two 
months  before  the  death  of  the  testator." 

Thus,  under  the  second  section  of  the  Free  Church  Act 
of  1854,  adopting  the  provisions  of  the  Act  of  1848,  and 
under  the  second  section  of  that  act,  incorporated  free 
churches  may  take  and  hold,  by  purchase  in  its  technical 
sense,  real  and  personal  estate,  and  in  respect  to  the  edifice 
and  ground  on  which  it  stands,  Avithout  a  limitation  as  to 
value.  And  again,  under  the  sixth  section  of  such  Act  of 
1848,  above  cited,  they  are  made  capable  of  taking  by  devise 
or  bequest,  provided  the  income  does  not  exceed  ten  thou- 
sand dollars ;  bat  subject  to  the  provision,  where  there  is  a 
wife,  child,  or  parent.  Then  the  devise  or  bequest  might  be 
for  the  one  fourth  of  the  testator's  estate,  but  no  more. 

But  we  are  to  consider  the  effect  of  the  act  "  relating  to 
Wills,"  passed  April  13,  1860  (chap.  360),  whether  it  ap- 
plies to  free  churches.  By  that  act,  "  no  person  having  a 
husband,  wife,  child,  or  parent,  shall,  by  his  or  her  last  will 
and  testament,  devise  or  bequeath  to  any  benevolent,  chari- 
table, literary,  scientific,  religious,  or  missionary  society,  as- 
sociation, or  corporation,  in  trust  or  otherwise,  more  than 
one  half  part  of  his  or  her  estate,  after  the  payment  of  his 


Free   Churches.  213 

or  her  debts ;  and  such  devise  or  bequest  shall  be  valid  to 
the  extent  of  one  half,  and  no  more." 

All  laws  and  parts  of  laws  inconsistent  with  such  act 
were  repealed. 

Now  the  Act  of  1854  has  only  adopted  the  Act  of  1848,  as 
amended  in  1849.  The  effect  is  the  same  as  if  all  those 
provisions  not  inapplicable,  were  transferred  literally  into  its 
text.  Then  comes  the  comprehensive  statute  of  1860,  using 
for  the  first  time,  the  term  religious,  as  well  as  benevolent, 
etc.  There  can  be  little  doubt,  I  presume,  that  it  extends 
to  free  churches. 

There  is  one  point,  however,  perhaps  doubtful.  The  sixth 
section  of  the  Act  of  1848  made  it  necessary  that  the  devise 
or  bequest  should  be  executed  two  months  at  least  before 
the  testator's  death.  The  Act  of  1860  omits  this  provision 
entirely.  Now  as  the  Act  of  1848  did  not  extend  to  religious 
incorporations  at  all,  and  the  Act  of  1854  extended  it  to  free 
churches  solely,  other  religious  corporations  really  take  by 
force  of  the  Act  of  1860,  and  it  may  be  concluded  that  this 
two  months'  clause  does  not  prevail  as  to  devises  to  them. 

Perhaps  the  better  opinion  is,  that  the  Act  of  1860,  as  it 
is  the  last,  and  very  comprehensive  revision  of  the  whole 
subject-matter,  has  superseded  the  two  months'  provision,  as 
to  all  the  societies  or  corporate  bodies  enumerated  in  it. 

§  9.  LiaUlitg  for  Debts.  The  seventh  section  of  the  Act 
of  1848  is  as  follows  :  "  The  trustees  of  any  company  or  cor- 
poration organized  under  the  provisions  of  this  act,  shall  be 
jointly  and  severally  liable  for  all  debts  due  from  said  com- 
pany or  corporation,  contracted  while  they  are  trustees; 
provided  such  debts  are  payable  within  one  year  from  the 
time  they  shall  have  been  contracted,  and  provided  a  suit  for 
the  collection  of  the  same  shall  be  brought  within  one  year 
after  the  debt  shall  become  due  and  payable." 

The  second  section  of  the  Act  of  1854  has  this  clause  as 
to  such  liability :  "  And  except  that  the  provision  in  the 
first  of  such  acts  "  (that  above  quoted),  "  in  relation  to  the 
personal  liability  of  the  trustees,  shall  be  applicable  only  to 
the  trustees  who  shall  have  assented  to  the  creation  of  any 
debt."     See  Eaton  v.  Aspinwall,  6  Duer's  Rep.  p.  176. 


214    Ecclesiastical  Law  in  the  State  of  Neiv   York. 

§  10.  The  eighth  section  provides,  that  all  institutions 
formed  under  the  act,  together  with  their  books  and  vouch- 
ers, shall  he  subject  to  the  visitation  and  inspection  of  the 
justices  of  the  Supreme  Court,  or  by  any  person  or  persons 
who  shall  be  appointed  by  the  Supreme  Court  for  that  pur- 
pose ;  and  it  shall  be  the  duty  of  the  trustees,  or  a  majority 
of  them,  iu  the  month  of  December  in  each  year,  to  make 
and  file  in  the  county  clerk's  office,  where  the  original  cer- 
tificate is  filed,  a  certificate  under  their  hands,  stating  the 
names  of  the  trustees  and  officers  of  such  association  or 
corporation,  with  an  inventory  of  the  property,  effects,  and 
liabilities  thereof,  with  an  affidavit  of  the  truth  of  such  cer- 
tificate and  inventory,  and  also  an  affidavit  that  such  associ- 
ation or  corporation  has  not  been  engaged,  directly  or  indi- 
rectly, in  any  other  business  than  such  as  is  set  forth  in  the 
original  certificate  on  file. 

§  11.  Each  corporation  formed  under  this  act  shall  pos- 
sess the  general  powers  conferred  by,  and  be  subject  to,  the 
provisions  and  restrictions  of  the  third  title  of  the  18tli 
chapter  of  the  first  part  of  the  Revised  Statutes.  (Ibid.  §  9 
of  Act  of  1848,  1  R.  S.  599.) 

§  12.  In  chapter  17,  §§  2-4,  I  have  transcribed  the  sec- 
tions of  the  Act  of  April  23,  1867.  A  religious  corporation 
may  purchase  and  hold  grounds  for  the  purpose  of  erecting 
free  churches  with  school-houses  and  residences.  The  seats 
must  be  free.  The  corporation  erecting  the  churches,  gov- 
ern and  regulate  them  entirely,  and  the  worshippers  are  not 
to  vote  or  have  right  as  corporators  in  the  parent  church. 

The  system  of  free  churches,  under  the  Act  of  1854,  has 
made  it  necessary  to  have  some  special  regulations  in  the 
Protestant  Episcopal  Church  in  New  York. 

A  new  clause  was  adopted  providing,  that  "  a  church  or 
congregation  incorporated  under  any  law  of  the  State  of 
New  York,  other  than  the  General  Act  of  1813,  and  tho 
amendments,  applying  for  admission  into  union  with  the 
Convention  of  this  diocese,  shall  submit  to  the  Convention, 
or  a  committee  appointed  by  its  authority,  the  certificate  or 
Act  of  Incorporation,  or  a  copy  of  the  same  duly  certified, 


Free   Churches.  215 

and  shall  also  comply  with  the  requirements  of  section  2  of 
this  Canon."    (Canon  4,  §  4,  of  Diocese  of  N.  Y.,  ed.  1864.) 

That  section  prescribes  that  every  incorporated  church, 
applying  for  admission  into  union  with  the  Convention  of 
the  diocese,  shall  produce  to  the  Convention  a  certificate 
of  the  Bishop,  or,  in  case  of  his  absence,  or  of  a  vacancy  in 
the  Episcopacy,  of  the  major  part  of  the  standing  commit- 
tee, that  he  or  they  approve  of  the  incorporation  of  such 
church. 

To  entitle  a  church  to  admission  into  union  with  the 
church  in  this  diocese,  it  shall  be  required  that  the  vestry 
submit  to  the  Convention,  or  to  a  committee  appointed  by 
its  authority,  the  certificate  of  incorporation  duly  recorded, 
or  a  copy  thereof  certified  by  the  clerk  of  the  county,  or  by 
the  officer  whose  duty  it  is  or  may  be  made  by  law,  to  record 
certificates  of  incorporation  of  religious  societies  in  the 
county  in  which  such  church  is  situated.  (Canon  4,  §  1,  as 
amended  in  1866.) 

Every  church  or  congregation  incorporated  since  April, 
1813,  or  hereafter  to  be  incorporated  under  any  law  of  the 
State  of  New  York,  other  than  the  General  Act  for  the  in- 
corporation of  churches,  passed  April,  1813,  and  its  amend- 
ments, shall  be  entitled  to  appoint  lay  delegates  to  the  Con- 
vention, not  exceeding  three  in  number,  who  shall  have 
been  connected  with  the  said  church  or  congregation  for  at 
least  twelve  months  previous  to  the  election  ;  to  be  chosen 
by  the  male  members  of  full,  legal  age,  of  the  church  or 
congregation,  who  shall  have  been  connected  therewith  as 
stated  worshipers,  for  the  space  of  one  year  previous  to  the 
election. 

The  time,  place,  and  manner  of  holding  such  election,  and 
the  notice  for  holding  the  same  (which  shall  be  ten  days  at 
the  least),  shall  be  fixed  by  rules  or  by-laws,  made  by  the 
trustees  of  such  church  or  congregation,  or  by  the  members 
of  the  same,  qualified  as  aforesaid,  at  a  meeting  duly  con- 
vened. 

A  written  certificate  of  the  appointment  of  such  delegates 
signed  by  the  minister,  if  there  be  one,  or  by  the  presiding 


216    Ecclesiastical  Law  in  the  State  of  New  York. 

officer  at  a  meeting"  of  the  coMgregatiou  by  which  they  were 
appointed,  and  by  the  clerk  or  secretary,  is  to  be  presented 
to  the  Convention,  declaring  that  such  persons  have  been 
duly  chosen  lay  delegates  by  such  church  or  congregation, 
are  members  of  the  same,  and  have  been  such  members  for 
twelve  months  preceding ;  and  further,  that  all  the  require- 
ments of  the  Canon,  and  of  the  general  rules  or  laws  gov- 
erning the  election,  have  been  duly  observed. 

No  other  certificate  or  evidence  of  the  appointment,  shall 
be  allowed  or  received. 

The  secretary  of  the  Convention  shall  record,  in  the  book 
mentioned  in  the  preceding  section,^  all  certificates  that 
shall  be  transmitted  to  him  in  accordance  with  the  second 
section  of  Canon  30  of  the  General  Convention  of  1832, 
being  Canon  12,  §§  1,  2,  title  1  of  the  Digest,  and  also  all 
certificates  that  shall  be  transmitted  to  him  by  the  bishop 
of  the  diocese,  of  the  settlement  of  any  minister  in  any 
church  or  congregation,  incorporated  since  April,  1813,  or 
hereafter  to  be  incorporated,  under  any  law  of  the  State  of 
New  York,  other  than  the  General  Act  for  the  Incorporation 
of  Churches,  passed  April,  1813,  and  its  amendments,  which 
has  been  or  may  hereafter  be  admitted  into  union  with  the 
church  in  this  diocese ;  Provided,  that  such  certificate  be 
such  as  is  required  in  Canon  12,  §  1,  title  1  of  the  Digest, 
except  that  the  same  may  be  signed  by  the  presiding  and 
recording  officers  of  the  body  electing  the  minister ;  and 
provided  further,  that  the  Bishop  shall  have  endorsed  on  such 
certificate,  that  he  is  satisfied  that  such  minister  is  a  quali- 
fied minister  of  this  Church. 

A  question  was  submitted  to  the  writer  in  1867,  which 
led  to  the  following  opinion.  It  related  to  St.  Matthew's 
Free  Church  in  the  Ninth  Ward  of  the  city  of  Brooklyn. 

The  church  was  organized  some  time  prior  to  its  incor- 
poration, with  a  rector,  wardens,  and  vestrymen,  and  the 
seats  were  free.  Its  title  was,  "  The  Free  Church  of  St. 
Matthew's." 

On  the  20th  of  June,  1859,  the  members  became  incorpo- 
^  Section  1,  Canon  11. 


Free  Churches.  217 

rated,  by  the  name  and  title  of  "  The  Rector,  Church-ward- 
eus,  and  Vestrymen  of  the  Free  Church  of  St.  Matthew  in 
the  Ninth  Ward  of  the  City  of  Brooklyn."  The  certificate 
was  recorded  on  that  day. 

The  incorporation  was  expressly  under  the  General  Act 
of  1813  and  its  amendments,  not  under  the  Act  of  1854,  as 
to  the  incorporation  of  free  churches. 

On  the  1st  of  November,  1859,  a  conveyance  was  made  of 
the  lots  on  which  the  church  edifice  stands,  to  "  The  Rector, 
Wardens,  and  Vestrymen  of  the  Free  Church  of  St.  Mat- 
thew." 

(1.)  Independently  of  the  question  arising  under  the  deed, 
I  do  not  doubt  that  the  vestry  possesses  the  power  of  making 
the  church  a  pay  church  as  it  is  termed,  selling  or  renting 
the  pews,  fixing  a  rate  upon  them,  etc.,  in  the  usual  mode. 
The  statutes  confer  this  authority  fully  upon  the  vestry  as 
trustees,  and  the  mere  designation  of  "  Free  "  in  the  title, 
cannot  take  away  or  abridge  this  power.  It  would  be  advis- 
able to  get  the  consent  of  a  majority  of  the  congregation, 
that  is,  of  those  entitled  to  vote  for  wardens  and  vestrymen, 
to  the  change. 

(2.)  "  I  think  also,  that  under  the  cases  of  Robertson  v. 
Bullions  (11  N.  Y.  Rep.  243),  and  Petty  v.  Tooker  (21  N.  Y. 
26),  the  title  to  the  property  granted  by  the  deed  of  Novem- 
ber, 1859,  will  not  be  impaired  by  the  alteration.  There  is 
not  a  word  in  the  conveyance  making  the  grant  conditional 
upon  the  church  remaining  a  free  one.  The  land  is  given 
to  a  church  or  corporation  whose  pews  were  then  free,  but 
in  subordination  to  the  legal  power  to  change  the  system, 
and  selling  or  leasing  them. 

"  To  g'uard,  however,  against  any  difficulty,  I  would  ad- 
vise, that  after  the  change  is  made,  a  release  be  obtained 
from  the  grantor,  reciting  the  alteration  and  confirming 
the  grant." 

The  Act  of  April,  1854,  covers  the  case  of  every  denom- 
ination of  Christians  who  may  wish  to  establish  Free 
Churches  under  it.  But  not  a  word  connects  its  provisions 
with  any  church  or  body  of  Christians. 


218    Ecclesiastical  Law  in  the  State  of  New   York. 

The  ecclesiastical  organization,  the  faith,  worship,  and 
discipline,  to  be  observed,  is  necessarily  left  to  the  trustees. 
This  is  so  because  no  one  of  the  attendants  upon  the  ser- 
vices have  the  slightest  voice  or  power  as  a  corporation  or 
otherwise.  The  whole  corporation  centres  in  the  trustees. 
They  iill  up  vacancies.  The  third  section  of  the  Act  of 
April  12,  1848,  is  inapplicable  of  course. 

The  authority  upon  this  subject  thus  necessarily  inferable, 
involves  among  other  things  the  selection  of  the  rector 
or  minister. 

The  right  to  take  and  hold  real  estate  is  conferred  by  the 
second  section  of  the  Act  of  April  12,  1848.  It  is  "  for  the 
purposes  of  the  Incorporation,  and  for  other  purposes." 
The  great  purpose  is  to  keep  the  sittings  free  in  the  church, 
but  by  means  of  trustees  who  are  to  manage  the  same.  To 
vest  a  power  of  nomination  or  creation  of  agencies  in  a  class 
of  other  persons,  infringes  upon  this  exclusive  authority  to 
manage  the  church. 

While  everything  pertaining  to  the  church,  except  what 
belongs  to  the  ministerial  functions  of  the  pastor,  is  within 
the  province  of  the  trustees,  and  must  be  controlled  by 
them,  yet  the  pastor  and  communicants  can  suggest  agen- 
cies of  action  to  the  trustees,  and  with  their  consent  carry 
them  out.  Either  by  by-laws  or  special  resolution  this  can 
be  done.  But  ultimate  and  supervisory  control  must  rest 
in  the  trustees. 


CHAPTER  XIX. 

BURTING-GROUNDS,   CEMETERIES,   VAULTS. 

§  1.  Act  of  April  11,  1842.  By  Religious  Corporations. 
(1.)  Any  incorporated  religious  society  within  the  city  of 
New  York  which,  having  exhibited  the  account  and  inven- 
tory required  by  the  tenth  section  of  the  act  entitled  "  An 
Act  for  the  Incorporation  of  Religious  Societies,"  has  not 
since  purchased  or  acquired  lands  or  tenements  within  this 
State,  may  hereafter  purchase,  acquire,  and  hold  land 
within  the  city  and  county  of  New  York,  or  in  any  neigh- 
boring county  of  this  State,  or  any  estate  or  interest  in  such 
land,  for  the  purpose  of  a  burial-place  or  cemetery. 

(2.)  And  may  erect  thereon  a  suitable  edifice,  in  which  to 
perform  the  religious  services  usual  on  the  burial  of  the 
dead. 

(3.)  And  also  necessary  building's  for  the  residence  and 
accommodation  of  grave-dig"gers  and  keepers  of  the  ground. 

(4.)  And  whilst  and  so  long  as  such  land  shall  not  be  ap- 
propriated and  applied  to  any  other  purpose,  such  corpora- 
tion shall  not,  by  reason  of  the  purchase  or  acquisition  there- 
of, become  bound  or  liable  again  to  exhibit  an  account  or  in- 
ventory of  its  estate,  unless  it  shall  subsequently  purchase 
or  acquire  other  lands  or  tenements  within  this  State.  (§  1 
of  Act  of  Aju-il  11,  1842,  Laws,  chap.  153.) 

(5.)  Misapplication  of  Land.  If  any  land,  so  to  be  pur- 
chased or  acquired  by  any  such  religious  corporation,  shall 
be  subsequently  appropriated  or  applied  to  any  use  or  pur- 
pose other  than  as  is  hereby  authorized,  every  such  corpora- 
tion which  shall  so  otherwise  appropriate  or  apjjly  the  same, 
or  suffer  it  to  be  so  otherwise  appropriated  or  applied,  shall 
thenceforth  be  subject  to  the  provisions  of  the  tenth  section 


220    Ecclesiastical  Laiv  in  the  State  of  Neiv   York. 

of  the  above-meutioued  act,^  iu  the  same  mauuer  as  if  this 
act  had  not  been  passed.     (Ibid.  §  2.) 

§  2.  The  authority  g'iven  by  the  act  concerning*  the  acqui- 
sition of  burial-places  by  religious  corporations  in  the  city 
of  New  York,  passed  April  11,  1842,  to  purchase,  acquire, 
and  hold  land  for  the  purpose  of  a  burial-ground  or  ceme- 
tery, and  to  erect  thereon  suitable  buildings  for  purposes 
connected  with  the  burial  of  the  dead,  is  hereby  extended 
to  religious  corporations  in  every  part  of  the  State;  and 
such  purchases  heretofore  made,  or  hereafter  made  in  the 
city  of  New  York,  or  elsewhere,  and  the  erection  of  build- 
ings thereon,  as  authorized  by  the  said  act,  are  hereby  con- 
firmed and  declared  valid,  notwithstanding  any  restriction 
contained,  or  supposed  to  be  contained  in  the  act  to  provide 
for  the  Incorporation  of  Religious  Societies,  passed  April  5, 
1813,  or  in  any  special  charter  of  such  corporation.  (§  3  of 
Act  of  March  30,  1850,  Laws,  chap.  122.) 

§  3.  Wlien  may  be  llortgaged.  It  shall  not  be  lawful  for 
any  church  or  religious  association  to  mortgage  any  burying- 
grouud  used  for  the  interment  of  human  remains,  for  the 
use  of  which  they  shall  have  received  compensation,  without 
the  previous  consent  in  writing  of  three  fourths  in  number 
of  the  congregatidn  or  society  of  such  church  or  corpora- 
tion ;  which  consent  shall  be  proved  or  acknowledged  in  the 
same  manner  as  deeds  are  now  required  by  law  to  be  proved 
or  acknowledged,  and  shall  thereupon  be  recorded  iu  the 
office  of  the  register  of  the  city,  or  clerk  of  the  county  in 
which  such  burying-ground  is  situated.  (§  1  of  Act  of 
April  11,  1842,  Laws,  chap.  215.) 

§  4.  Removal  of  Bodies.  It  shall  not  be  lawful  for  any 
person  or  persons  to  remove  any  dead  body  or  human  re- 
mains from  any  burying-ground  for  the  interment  of  which 
compensation  shall  have  l)een  received  by  any  church  or 
religious  corporation,  or  by  any  officer  or  officers  thereof; 
and  which  shall  have  been  used  for  that  purpose  during  the 
last  three  years,  with  the  intent  to  convert  the  said  buryino-- 
ground  to  any  other  purpose,  without  having  first  obtained 
1  Section  10  of  Act  of  1813,  aute,  cliap.  14,  §  9. 


Burning-grounds,  Cemeteries,   Vaults.  221 

the  consent  in  writing  of  three  fourths  in  number  of  the 
congregation  or  society  of  such  church  or  corporation ;  and 
which  consent  shall  be  proved  or  acknowledged,  and  record- 
ed in  the  manner  prescribed  by  the  first  section  of  this  act, 
before  any  such  removal  shall  be  commenced  or  attempted. 
(Ibid.  §  2.) 

§  5.  Any  person  offending  against  any  of  the  provisions 
of  the  second  section  of  this  act,  shall,  upon  conviction,  be 
adjudged  guilty  of  a  misdemeanor,  and  shall  be  punished  by 
imprisonment  in  a  county  jail  not  exceeding  six  months,  or 
by  a  fine  not  exceeding  five  hundred  dollars,  or  by  both  fine 
and  imprisonment,  in  the  discretion  of  the  Court.     (Ibid. 

§3.) 

§  6.  The  title  to  every  lot  which  shall  have  been  used  by 
the  inhabitants  of  any  town  in  this  State,  as  a  cemetery  or 
burying-ground,  for  the  space  of  foui-teen  years  next  and 
immediately  before  this  title  shall  take  efiect  (December  4, 
1827),  shall  be  deemed  to  be  vested  in  such  town,  and  shall 
be  subject  in  the  same  manner  as  other  corporate  property 
of  towns,  to  the  government  and  direction  of  the  electors  in 
town  meeting.     (I  R.  S.  1830,  p.  360.) 

§  7.  The  trustees  of  every  religious  incorporation  under 
the  Act  of  1813,  have  power  to  make  by-laws  as  to  the  per- 
quisites for  breaking  the  ground  in  the  cemetery  or  church- 
yard, and  in  the  said  churches  and  meeting-houses  for  bury- 
ing the  dead.     (§  4  of  Act  of  April  5,  1813.) 

It  can  scarcely  be  doubted  that  a  general  power  to  take 
and  hold  lands  for  the  use  of  a  church  or  congregation,  or 
other  pious  uses,  would  authorize  the  application  of  such 
laud  for  the  purpose  of  burying.  This  seems  to  be  implied 
in  the  clause  cited.  It  would  seem  that  portions  of  the 
land  adjoining  the  church  was  intended.  Further  legisla- 
tion authorized  the  purchase  of  ground  elsewhere. 

§  8.  Associations.  Any  number  of  persons  residing  in  this 
State,  not  less  than  seven,  who  desire  to  form  an  association 
for  the  purpose  of  procuring  and  holding  lands  to  be  used 
exclusively  for  a  cemetery  or  place  of  burial  for  the  dead, 
may  meet  at  such  time  and  place,  as  they  or  a  majority  of 


222    Ecclesiastical  Law  in  the  State  of  New   York. 

them  may  agree,  and  appoint  a  chairman  and  secretary  hy  a 
vote  of  the  majority  of  the  persons  present  at  the  meeting", 
and  proceed  to  form  an  association  by  determining  on  a 
corporate  name  by  which  the  association  shall  be  called  and 
known ;  by  determining  on  the  number  of  trustees  to  man- 
age the  concerns  of  the  association,  which  number  must  be 
not  less  than  six  nor  more  than  twelve. 

They  thereupon  may  proceed  to  elect,  by  ballot,  the  num- 
ber of  trustees  so  determined  on ;  and  the  chairman  and 
secretary  must  immediately  after  such  election  divide  the 
trustees  by  lot  into  three  classes  :  those  of  the  first  class  to 
hold  their  office  one  year,  of  the  second  class  two  years,  and 
the  third  three  years. 

The  meeting  must  also  determine  on  what  day  in  each 
year  the  future  annual  election  of  trustees  shall  occur.  (§  1 
of  Act  of  April  27,  1847,  chap.  133.  An  Act  authorizing 
the  Incorporation  of  Rural  Cemetery  Associations.) 

§  9.  The  chairman  and  secretary  of  the  meeting  shall, 
within  three  days  after  such  meeting,  make  a  written  cer- 
tificate, and  sign  their  names  thereto,  and  acknowledge  the 
same  before  an  officer  authorized  to  take  the  proof  and  ac- 
knowledgment of  deeds  in  the  county  where  such  meeting 
was  held. 

Such  certificate  must  state  the  names  of  the  associates 
who  attended  such  meeting,  the  corporate  name  of  the  asso- 
ciation determined  upon  by  the  majority  of  the  persons  who 
met,  the  number  of  trustees  fixed  on  to  manage  the  con- 
cerns of  the  association,  the  names  of  the  trustees  chosen 
at  the  meeting  and  their  classification,  and  the  day  fixed  on 
for  the  annual  election  of  trustees. 

Which  certificate  it  shall  be  the  duty  of  the  chairman  and 
secretary  of  the  meeting  to  cause  to  be  recorded  in  the 
clerk's  office  of  the  county  in  which  the  meeting  was  held,^ 
in  a  book  to  be  appropriated  to  the  recording  of  certificates 
of  incorporation.     (Ibid.  §  2.) 

§  10.  Upon  such  certificate  duly  acknowledged  as  afore- 
said being  recorded,  the  association  mentioned  therein  shall 
^  It  is  presumed  in  the  Register's  Office  in  New  York. 


Burying-groiinds,  Cemeteries,   Vaults.  223 

be  deemed  legally  incorporated,  and  shall  have  and  possess 
the  general  powers  and  privileges,  and  be  subject  to  the  lia- 
bilities and  restrictions  contained  in  the  third  title  of  the 
18th  chapter  of  part  first  of  the  Revised  Statutes.     (Ibid. 

§3.) 

§  11.  (1.)  The  affairs  and  property  of  such  associations 
shall  be  managed  by  the  trustees,  who  shall  annually  appoint 
from  among  their  number  a  president  and  a  vice-president, 
and  shall  appoint  a  treasurer  and  secretary,  who  shall  hold 
their  places  during  the  pleasure  of  the  board  of  trustees ; 
and  the  trustees  may  require  the  treasurer  to  give  security 
for  the  faithful  performance  of  the  duties  of  his  office. 
(Ibid.  §  3,  as  amended  by  Act  of  April  16,  1852,  Laws,  chap. 
280.) 

(2.)  The  trustees  mny  fill  any  vacancy  in  the  office  of 
president  or  vice-president,  occurring  during  the  year  for 
which  they  hold  their  office.     (Ibid.  §  2.) 

§  12.  Land  may  he  talmifor  Cemeteries.  (1.)  Any  associa- 
tion incorporated  under  this  act  may  take  by  purchase  or 
devise,  and  hold,  within  the  county  in  which  their  certificate 
of  incorporation  is  recorded,  not  exceeding  two  hundred  acres 
of  land  ;  to  be  held  and  occupied  exclusively  for  a  cemetery 
for  the  burial  of  the  dead.     (Ibid.  Law  of  1847,  §  4.) 

(2.)  Such  land  or  such  parts  thereof  as  may  from  time  to 
time  be  required  for  that  purpose,  shall  be  surveyed  and 
subdivided  into  lots  or  plats  of  such  size  as  the  trustees 
may  direct,  with  such  avenues,  paths,  alleys,  and  walks  as 
the  trustees  deem  proper ;  and  a  map  or  maps  of  such 
surveys  shall  be  filed  in  the  clerk's  office  of  the  county  in 
which  the  land  shall  be  situated.     (Ibid.) 

(3.)  And  after  filing  such  map  the  trustees  may  sell  and 
convey  the  lots  or  plats  designated  on  such  map,  upon  such 
terms  as  shall  be  agreed  upon  and  subject  to  such  conditions 
and  restrictions,  to  be  inserted  in  or  annexed  to  the  convey- 
ances, as  the  trustees  shall  prescribe.  The  conveyances  to 
be  executed  under  the  common  seal  of  the  association,  and 
signed  by  the  president  or  vice-president  and  the  treasurer 
of  the  association.     (Ibid.) 


224    Ecclesiastical  Laiv  in  the  State  of  New   York. 

(4.)  Any  associatiou  iucorporated  imder  this  act  may  hold 
personal  property  to  an  amount  not  exceeding  five  thousand 
dollars,  besides  what  may  arise  from  the  sale  of  lots  or  plats. 
(Ibid.) 

(5.)  It  shall  be  lawful  for  such  association  to  agree  with 
the  person  or  persons  from  whom  cemetery  lands  may  be 
purchased,  to  pay  for  such  lands,  or  the  purchase  price 
thereof,  any  specified  share  or  portion,  not  exceeding  one 
half  the  proceeds  of  all  sales  of  lots  or  plats  made  from 
such  lands ;  in  which  case,  the  share  or  portion  of  such 
proceeds  so  agreed  upon,  not  exceeding  one  half  thereof, 
must  be  appropriated  and  applied  to  the  payment  of  the 
purchase-money  of  the  lands  so  acquired,  and  the  residue 
thereof  must  be  appropriated  to  preserviug,  improving,  and 
embellishing  the  cemetery  grounds,  and  the  avenues  and 
roads  leading  thereto,  and  to  defraying  the  incidental  ex- 
penses of  the  cemetery  establishment.  (Laws  of  1853, 
chap.  122.) 

(6.)  In  all  cases  where  cemetery  lands  are  purchased  and 
agreed  to  be  paid  for  in  the  manner  referred  to  in  the  last 
preceding  section,  the  prices  for  lots  or  plats  specified  in  the 
by-laws,  rules  and  regulations,  first  adopted  by  any  such 
association,  cannot  be  legally  changed  without  the  written 
consent  of  a  majority  in  interest  of  the  persons  from  whom 
the  cemetery  lands  were  purchased,  their  heirs,  representa- 
tives, or  assigns.     (Ibid.) 

§  13.  xVU  lots  or  plats  of  ground  designated  on  the  map 
filed  as  aforesaid,  and  numbered  as  separate  lots  by  the  in- 
corporation, shall  be  indivisible,  but  may  be  held  and  owned 
in  undivided  shares.  One  half  at  least  of  the  proceeds  of 
all  sales  of  lots  or  plats  shall  be  first  appropriated  to  the 
payment  of  the  purchase-money  of  the  lands  acquired  by 
the  association,  until  the  whole  purchase-money  shall  be 
paid  ;  and  the  residue  thereof,  to  the  preserving,  improving, 
and  embellishing  the  said  cemetery  grounds,  and  the  ave- 
nues or  roads  leading  thereto,  and  to  defraying  the  inciden- 
tal expenses  of  the  cemetery  establishment. 

And,  after  the  payment  of  the  purchase-money,  and  the 


Biu'i/ing-grounds,  Cemeteries,   Vaults.  225 

debts  contracted  therefor,  and  for  surveying  and  laying  out 
the  land,  the  proceeds  of  all  future  sales  shall  be  applied  to 
the  improvement,  embellishment,  and  preservation  of  such 
cemetery,  and  for  incidental  expenses,  and  to  no  other  pur- 
pose or  object.  (Ibid.  §  7,  as  amended  by  Act  of  Ajjril  14, 
1852,  chap.  280.) 

§  14.  Any  association  incorporated  pursuant  to  this  act, 
may  take  and  hold  any  property,  real  or  personal,  bequeathed 
or  given  upon  trust,  to  apply  the  income  thereof,  under  the 
direction  of  the  trustees  of  such  association,  for  the  improve- 
ment or  embellishment  of  such  cemetery,  or  the  erection  or 
preservation  of  any  buildings,  structures,  fences,  or  walks, 
erected  or  to  be  erected  upon  the  lands  of  such  cemetery 
association,  or  upon  the  lots  or  plats  of  any  of  the  proprie- 
tors ;  or  for  the  repair,  preservation,  erection,  or  renewal  of 
any  tomb,  monument,  grave-stone,  fence,  railing,  or  other 
erection  in  or  around  any  cemetery  lot  or  plat ;  or  for  plant- 
ing or  cultivating  trees,  shrubs,  flowers  or  plants  in  or 
around  any  such  lot  or  jdat,  or  for  improving  or  embel- 
lishing such  cemetery,  or  any  of  the  lots  or  plats  in  any 
other  manner  or  form,  consistent  with  the  design  and  pur- 
poses of  the  association,  according  to  the  terms  of  such 
grant,  devise,  or  bequest.     (Ibid.  §  9.) 

§  15.  The  cemetery  lands  and  property  of  any  association 
formed  pursuant  to  this  act,  shall  be  exempt  from  all  public 
taxes,  rates,  and  assessments ;  and  shall  not  be  liable  to  be 
sold  on  execution,  or  be  applied  in  payment  of  debts  due 
from  any  individual  proprietors.  But  the  proprietors  of 
lots  or  plats  in  such  cemeteries,  their  heirs  or  devisees,  may 
hold  the  same  exempt  therefrom  so  long  as  the  same  shall 
remain  dedicated  to  the  purposes  of  a  cemetery  ;  and  during 
that  time,  no  street,  road,  avenue,  or  thoroughfare  shall  be 
laid  through  such  cemetery,  or  any  part  of  the  lands  held 
by  such  association,  for  the  purposes  aforesaid,  without  the 
consent  of  the  trustees  of  such  association,  except  by  special 
permission  of  the  legislature  of  the  State.     (Ibid.  §  10.) 

§  16.  Whenever  the  said  land  shall  have  been  laid  out  in 
plats  or  lots,  and  said  lots  or  plats  shall  have  been  traus- 

15 


226    Ecclesiastical  Law  in  the  State  of  New  York. 

ferred  to  individual  holders,  and  after  there  shall  have  been 
an  interment  in  a  lot  or  plat  so  transferred,  such  lot  or  plat 
from  the  time  of  such  first  interment  shall  be  forever  there- 
after inalienable,  and  shall,  upon  the  death  of  the  holder  or 
proprietor  thereof,  descend  to  the  heirs  at  law  of  such  holder 
or  proprietor,  and  to  their  heirs  at  law  forever.  Provided, 
nevertheless,  that  any  one  or  more  of  such  heirs  at  law  may 
release  to  any  other  of  the  said  heirs  at  law,  his,  her,  or  their 
interest  in  the  same,  on  such  conditions  as  shall  be  agreed 
on  and  specified  in  such  release ;  a  copy  of  which  release 
shall  be  filed  with  the  town  clerk  of  the  town,  or  the  register 
of  the  city,  within  which  such  cemetery  shall  be  situated. 

And,  provided  further,  that  the  body  of  any  deceased  per- 
son shall  not  be  interred  in  such  lot  or  plat,  unless  it  be  the 
body  of  a  person  having  at  the  time  of  such  decease,  an  in- 
terest in  such  lot  or  plat,  or  the  relative  of  some  person 
having  such  interest,  or  the  wife  of  such  person,  or  her  rel- 
atives, except  by  the  consent  of  all  persons  having  an  inter- 
est in  such  lot  or  plat.     (Ibid.  §  11.) 

§  17.  Any  person  who  shall  wilfully  destroy,  mutilate, 
deface,  injure,  or  remove  any  tomb,  monument,  grave- stone, 
building,  or  other  structure,  jjlaced  in  any  cemetery  of  any 
association  incorporated  under  this  act,  or  any  fence,  railing, 
or  other  work  for  the  protection  or  ornament  thereof,  or  of 
any  tomb,  monument,  or  grave-stone,  or  other  structures 
aforesaid,  or  of  any  plat  or  lot  within  such  cemetery,  or 
shall  wilfully  destroy,  cut,  break,  or  injure  any  tree,  shrub, 
or  plant  within  the  limits  of  such  cemetery,  shall  be  deemed 
guilty  of  a  misdemeanor;  and  such  offender  shall  also  be 
liable  in  an  action  of  trespass,  to  be  brought  in  all  such 
cases  in  the  name  of  the  association,  to  pay  all  such  dam- 
ages as  shall  have  been  occasioned  by  his  unlawful  act  or 
acts.  Such  money  when  recovered,  shall  be  applied  by  the 
trustees  to  the  reparation  or  restoration  of  the  property  so 
destroyed  or  injured.     (Ibid.  §  8.) 

§  18  (1.)  The  annual  election  for  trustees  to  supply  the 
place  of  those  whose  term  of  office  expires,  shall  be  holden 
on  the  day  mentioned  in  the  certificate  of  incorporation,  and 


Buri/ing-(/rowids,   Cemeteries,    Vaults.  227 

at  such  hour  and  place  as  the  trustees  shall  direct ;  at  which 
election  shall  he  chosen  such  number  of  trustees  as  will 
supply  the  places  of  those  whose  term  expires.     (Ibid.  §  5.) 

(2.)  Such  trustees  shall  have  the  power,  by  a  resolution 
of  a  majority  of  all  of  them,  to  change  the  time  for  the 
annual  election  of  trustees  as  fixed  in  the  act  of  incorpora- 
tion ;  but  no  such  resolution  shall  take  effect  until  sixty 
days  after  the  same  has  been  published  six  successive  weeks, 
once  in  each  week,  in  some  newspaper  published  in  the  city 
or  county  where  the  association  is  situated,  and  a  copy  of 
such  resolution,  certified  by  the  president  and  secretary, 
shall  have  been  filed  in  the  office  of  the  clerk  of  the  county 
where  the  certificate  of  incorporation  is  recorded.  (Ibid., 
as  amended  by  Act  of  April  .5,  1860,  chap.  163.) 

(3.)  The  trustees  chosen  at  any  election  subsequent  to  the 
first  shall  hold  their  places  for  three  years,  and  until  others 
shall  be  chosen  to  succeed  them. 

(4.)  The  election  shall  be  by  ballot,  and  every  person  of 
full  age  who  shall  be  proprietor  of  a  lot  or  plat  in  the  cem- 
etery of  the  association,  containing  not  less  than  ninety-six 
square  feet  of  laud,  or  if  there  be  more  than  one  proprietor 
of  any  such  lot  or  plat,  then  such  one  of  the  proprietors  as 
the  majority  of  joint  proprietors  shall  designate  to  represent 
such  lot  or  plat,  may,  either  in  person  or  by  proxy,  give  one 
vote  for  each  plat  or  lot  of  the  dimensions  aforesaid ;  and 
the  persons  receiving  a  majority  of  all  the  votes  given  at 
such  election,  shall  be  the  trustees  to  succeed  those  whose 
term  of  office  expires.  But  in  all  the  elections  after  the 
first,  the  trustees  shall  be  chosen  from  among  the  proprie- 
tors of  lots  or  plats.     (Ibid.  §  5,  as  amended  in  1860.) 

(5.)  The  trustees  shall  have  power  to  fill  any  vacancy  in 
their  number  occurring  during  the  period  for  which  they 
hold  their  office.  Public  notice  of  the  annual  elections 
shall  be  given  in  such  manner  as  the  by-laws  of  the  corpo- 
ration shall  prescribe.     (Ibid.) 

§  19.  (1.)  The  trustees  at  each  annual  election  shall  make 
report  to  the  lot  proprietors  of  their  doings,  and  of  the 
management  and  condition  of  the  property  and  concerns  of 
the  association. 


228    Ecclesiastical  Law  in  the  State  of  Neio   YorJc. 

(2.)  If  the  annual  election  shall  not  be  held  on  the  day 
fixed  in  the  certificate  of  incorporation,  the  trustees  shall 
have  power  to  appoint  another  day,  not  more  than  sixty  days 
thereafter,  and  shall  g'ive  public  notice  of  the  time  and 
place  at  which  the  election  may  be  held,  with  like  eff'ect  as 
if  holden  on  the  day  fixed  in  the  certificate.  The  office  of 
trustees  chosen  at  such  time  to  expire  at  the  same  time  as 
if  they  had  been  chosen  on  the  day  fixed  by  the  certificate 
of  incorporation.     (Laws  of  1847,  chap.  133,  ut  siqjra,  §  6.) 

§  20.  (1.)  The  trustees  may  fund  any  outstanding  indebt- 
edness of  the  association,  for  lands  purchased  for  cemetery 
purposes,  or  for  moneys  actually  expended  in  preserving, 
improving,  and  embellishing  the  cemetery  grounds,  and 
may  provide  for  the  payment  of  such  funded  debt.  When- 
ever such  trustees,  by  a  vote  of  two  thirds  of  all  the  trust- 
ees elected,  may  desire  to  fund  such  indebtedness,  they  are 
required  to  ascertain  the  amount  of  obligations  outstanding 
for  the  purchase-money  of  the  lands  acquired  by  the  associ- 
ation, and  for  preserving,  improving,  and  embellishing  the 
cemetery  grounds  ;  and  thereupon,  with  the  consent  of  any 
creditor  to  whom  the  indebtedness  or  any  part  of  it,  may  be 
due  and  owing*,  the  said  trustees  may  issue  certificates  for 
the  amount  thereof  in  sums  of  one  hundred  dollars  each, 
payable  at  such  time,  and  drawing  such  interest  as  may  be 
agreed  upon,  in  satisfaction  and  discharge  of  such  indebted- 
ness, or  such  part  of  it ;  but  no  certificate  shall  be  issued 
for  any  fractional  part  of  one  hundred  dollars,  nor  drawing 
any  higher  rate  of  interest  than  seven  per  cent,  per  annum. 

(2.)  The  certificates  must  be  sealed  with  the  corporate  seal 
of  the  association,  and  signed  l)y  the  president  and  treas- 
urer thereof,  and  shall  be  deemed  personal  property  and 
transferal)le  by  delivery,  unless  otherwise  provided  on  their 
face,  and  an  exact  and  true  account  of  the  number  and 
amount  thereof,  the  persons  to  whom  issued,  the  time  of 
maturity,  and  the  rate  of  interest,  must  be  accurately  en- 
tered on  the  books  of  the  association.  (Laws  of  April  5, 
1860,  chap.  163,  §  1.) 

§  21.  The  trustees  shall  keep  a  distinct  and  separate  ac- 


Burying-groimds,  Cemeteries,    Vaults.  229 

count  of  the  certificates  issued  for  the  purchase  of  lands  ac- 
quired hy  the  association,  and  the  certificates  issued  for  debts 
incurred  in  improving-  and  embellishing-  the  cemetery 
grounds,  in  the  cemetery  books ;  and  it  shall  be  their  duty  at 
least  twice  in  each  year,  to  apply  the  proceeds  of  all  sales  of 
lots  or  plats  in  redemption  of  such  certificates,  one  half  for 
the  redemption  of  certificates  issued  for  said  purchase-money 
until  the  whole  are  redeemed,  and  the  residue  thereof  for  the 
redemption  of  certificates  issued  for  debts  incurred  as  afore- 
said, and  upon  such  redemption,  the  trustees  must  cancel  the 
certificates  on  their  books  and  destroy  the  certificates  re- 
turned.    (Ibid.  §  2.) 

§  22.  Until  the  certificates  are  redeemed,  the  holders  of 
the  same  shall  be  entitled  to  vote  at  all  elections  and  busi- 
ness meetings  of  the  corporation,  one  vote  for  each  and 
every  certificate  of  one  hundred  dollars,  held  by  such  voter. 
None  of  the  provisions  shall  be  construed  to  create  a  lien 
upon  lots  or  plats  belonging-  to  individual  proprietors,  within 
the  cemetery  limits  ;  nor  shall  any  other  or  greater  liabili- 
ty be  created  by  the  certificates  against  the  association  or 
trustees  issuing-  them,  than  may  be  necessary  to  enforce  the 
faithful  application  of  the  proceeds  of  sales,  in  the  redemp- 
tion of  such  certificates  in  the  manner  specified.  (Ibid.  §  4.) 

§  23.  It  shall  not  be  lawful  for  any  rural  cemetery  here- 
after incorporated  under  the  act  hereby  amended  to  take  by 
deed,  devise,  or  otherwise,  any  lands  in  the  counties  of 
Westchester,  King-s,  or  Queens,  or  set  apart  any  ground  for 
cemetery  purposes  therein,  without  the  consent  of  the  board 
of  supervisors  of  said  county  first  had  and  obtained,  as  pro- 
vided for  by  this  act ;  nor  shall  it  be  lawful  for  any  person 
or  incorporation,  not  incorporated  under  said  act,  to  take  as 
aforesaid,  or  set  apart  or  use,  any  land  or  ground  in  either 
of  said  counties  for  cemetery  purposes,  without  the  consent 
of  the  board  of  supervisors  of  such  county  first  had  and 
obtained,  in  like  manner  as  provided  for  in  this  act. 

And  such  board  of  supervisors  in  granting  such  request, 
may  annex  thereto  such  conditions,  regulations,  and  restric- 
tions as  such  board  may  deem  the  public  health  or  the  public 


230    Ecclesiastical  Law  in  the  State  of  Neiu   York. 

good  to  require.  (§  1  of  Act  of  April  15,  1854,  Laws,  chap. 
238.  An  Act  to  amend  an  Act  passed  April  14,  1852,  en- 
titled An  Act  fui-tlier  to  amend  the  Act  entitled.  An  Act 
authorizing  the  Incorporation  of  Rural  Cemetery  Associa- 
tions, passed  April  27,  1847.) 

§  24.  Nothing  contained  in  the  preceding  section  shall 
prevent  any  ecclesiastical  corporation  now  organized  in 
either  of  said  counties,  from  using  any  burial-ground  now 
belonging  to  it  within  such  county,  as  it  has  been  heretofore 
accustomed.     (Act  of  April  15,  1854,  chap.  238.) 

§  25.  Any  cemetery  association  or  other  incorporation, 
desiring  to  use  any  lands  for  cemetery  purposes,  in  either 
of  said  counties,  or  to  take  a  conveyance  thereof,  must  cause 
notice  to  be  published  in  the  county  in  which  such  lands  are 
situated,  of  their  intention  to  apply  to  the  board  of  super- 
visors of  such  county,  stating  the  time  at  which  such  appli- 
cation will  be  made  for  the  consent  mentioned ;  such  notice 
must  contain  a  brief  description  of  the  lands  for  which  such 
consent  is  asked,  and  also  their  location  and  the  number  of 
acres.  At  such  meeting,  upon  due  proof  of  the  publication 
of  the  notice  required,  the  applicants,  and  remonstrants, 
if  any,  may  be  heard  in  person  and  by  counsel ;  and  there- 
upon, if  the  board  of  supervisors  grant  the  consent,  it  shall 
be  lawful  for  such  corporation  to  take  and  hold  the  lands 
designated  in  such  consent,  not  exceeding  two  hundred  and 
fifty  acres  in  any  county.  (§  2  of  Act  of  April  14,  1852, 
chap.  280.) 

§  26.  The  board  of  supervisors  of  each  of  said  counties 
(Westchester,  Kings,  and  Queens),  is  authorized  to  make, 
from  time  to  time,  such  regulations  as  to  the  mode  of  buri- 
als in  any  cemetery  within  their  bounds,  as  they  may  judge 
the  public  health  or  public  decency  to  require,  and  such 
regulations  must  not  be  disobeyed.  (§  3  of  Act  of  April  15, 
1854,  chap.  238.) 

§  27.  Act  of  May  7,  1847.  The  legal  voters  of  any  incor- 
porated village,  at  any  meeting  thereof  lawfully  convened, 
may,  by  resolution,  direct  the  trustees  of  such  village  to 
purchase  suitable  land  for  a  burying-ground  of  such  village, 


Burying-groimds,  Cemeteries,   Vaults.  231 

or  land  in  addition  to  any  buryiug-grouud  already  owned, 
upon  such  terms  and  conditions,  not  inconsistent  with  cer- 
tain provisions  hereinafter  stated,  as  such  meeting  shall 
prescribe  ;  hut  the  whole  expense  of  purchasing  such  ground 
or  additional  lands  in  any  village,  fencing  the  same,  and 
putting  it  in  proper  condition  to  be  used  as  a  burying- 
ground,  shall  not  exceed  twenty-five  hundred  dollars,  unless 
the  population  of  the  village  shall  exceed  four  thousand 
persons,  nor  more  than  four  thousand  dollars  in  any  case. 
And  the  title  of  such  burying-ground,  when  so  purchased, 
shall  be  vested  in  such  village,  by  its  corporate  name,  and 
shall  be  inalienable  except  to  individuals  for  the  purpose  of 
interments.  (§  1  of  Act  of  May  7,  1847,  Laws,  chap.  209, 
as  amended  by  Act  of  April  2,  1864,  chap.  117.  "  An  Act 
in  relation  to  Cemeteries,  in  incorporated  villages.") 

§  28.  No  such  resolution  shall  have  any  force  or  effect, 
unless  it  shall  provide  for  imposing,  levying,  and  collecting 
a  general  tax  upon  the  taxable  property  in  such  village  suf- 
ficient to  pay  all  the  expenses  of  such  purchase,  and  fencing 
the  lands  so  purchased,  aud  putting  them  in  a  proper  con- 
dition to  be  used  for  a  burying-grouud,  to  be  levied  aud 
collected  within  one  year,  or  in  equal  portions  within  three 
years,  from  the  time  of  the  adoption  of  such  resolution, 
which,  so  far  as  respects  the  levying  and  collecting  of  such 
tax,  shall  not  be  altered.  And  every  such  tax  shall  be  col- 
lected in  the  manner,  and  within  the  time  specified  in  this 
sectiou,  and  when  so  collected  shall  be  applied  to  the  pur- 
pose in  this  section  specified,  and  to  no  other.     (Ibid.  §  2.) 

§  29.  No  such  resolution  for  the  purchase  of  a  burying- 
ground,  aud  for  imposing,  levying,  and  collecting  such  tax, 
shall  be  passed  at  any  such  meeting,  by  virtue  of  the  pro- 
visions of  this  act,  unless  notice  of  an  intention  to  move 
for  the  adoption  of  such  a  resolution  at  such  meeting,  be 
given  previous  to  holding  the  same,  by  publishing  such 
notice  at  least  once  in  each  week,  for  four  successive  weeks, 
in  a  newspaper  published  in  the  village  in  which  such  meet- 
ing is  to  be  held,  or  in  case  no  newspaper  be  published  in 
such  village,  by  posting  up  such  notice  in  at  least  ten  pub- 


232    Ecclesiastical  Laio  in  the  State  of  New  YorJc. 

lie  places  iu  sueh  village,  at  least  thirty  days  before  the  time 
of  holding  the  meetiug.  And  before  any  such  resolution  is 
adopted,  proof  by  affidavit  of  publishing  or  posting  such 
notice  as  required,  must  be  filed  with  the  trustees  of  the 
village.     (Ibid.  §  3.) 

^  30.  The  trustees  of  such  village  shall  make  such  ordi- 
nances from  time  to  time  as  they  think  proper,  not  incon- 
sistent with  the  laws  of  the  State,  or  of  the  United  States, 
in  respect  to  such  burying'-grounds,  the  conveyance  of  lots 
therein  to  individuals  for  the  purpose  of  interments,  as  to 
interments  in  such  lots  or  portions  of  such  ground  not  so 
conveyed,  and  the  management  of  such  ground ;  and  may 
enforce  such  ordinances  by  penalties  not  exceeding  twenty 
dollars,  to  be  sued  for  and  recovered  with  costs,  in  the  cor- 
porate name  of  the  villag'e,  for  its  use,  in  any  court  having 
jurisdiction  thereof.     (Ibid.  §  4.) 

§  31.  Such  burying-ground  shall  be  laid  out  in  suitable 
lots  pursuant  to  the  ordinances  of  such  trustees,  and  they 
may  on  such  terms  and  conditions  as  shall  be  prescribed, 
and  for  such  prices  as  shall  be  agreed  to  by  them  on  behalf 
of  such  village,  convey  any  of  such  lots  to  individuals,  for 
the  sole  purpose  of  making  interments  therein,  by  convey- 
ances which  may  be  acknowledged  and  recorded  as  other 
conveyances  of  real  estate,  and  which  shall  be  recorded  by 
the  clerk  of  such  village  iu  a  suitable  book  to  be  kejit 
by  him ;  but  no  such  conveyance  shall  be  executed  for  any 
such  lot  until  the  price  thereof  shall  be  paid  to  such  village. 
(Ibid.  §  5.) 

§  32.  It  shall  be  the  duty  of  the  trustees  of  every  village 
in  which  there  shall  be  a  burying-ground,  purchased  by 
means  raised  by  a  general  tax  upou  the  taxable  property  in 
such  village,  to  reserve  a  reasonable  i)ortion  of  such  ground 
for  the  interment  of  strangers,  and  other  persons,  who  may 
die  in  such  village  under  such  circumstances  that  it  would 
be  unreasonable  to  require  payment  for  the  privilege  of 
making  such  interment.     (Ibid.  §  6.) 

§  33.  It  shall  be  the  duty  of  the  trustees  of  every  tillage 
iu  which  there  shall  be  a  burying-ground  so  purchased,  to 


Bxmjing-grounds^  Cemeteries,   Vaults.  233 

cause  au  accurate  record  to  be  kept  of  every  iuteruicnt 
thereiu,  and  the  time  when  made,  and  the  name,  age,  and 
place  of  birth,  of  every  person  buried  therein,  when  these 
particulars  can  be  conveniently  ascertained,  and  such  record 
shall  be  so  kept  as  to  show  the  lot  and  part  of  the  lot  in 
which  each  interment  shall  be  made.     (Ibid.  §  7.) 

§  34.  A  g'eueral  tax  not  exceeding  one  hundred  and  fifty 
dollars  in  any  one  year  may  be  imposed,  levied,  and  collected 
on  the  taxable  property  in  any  village  owning  a  burying- 
ground,  for  the  purpose  of  improving  the  same ;  such  tax 
shall  be  imposed  in  the  manner  prescribed  bylaw  for  impos- 
ing such  general  taxes  in  each  village  as  are  now  authorized 
by  law  to  be  imposed  thereon  for  village  purposes,  and 
when  collected,  shall  be  applied  to  improving  such  burying- 
ground.     (Ibid.  §  8.) 

§  35.  Private  Cemeteries.  Private  or  family  cemeteries 
may  be  incorporated  in  the  manner  hereinafter  prescribed, 
(§  1  of  Act  of  April  1,  1854,  Laws,  chap.  112.  "  An  Act 
for  the  Incorporation  of  Private  and  Family  Cemeteries.") 

§  36.  Any  number  of  persons  desirous  of  availing  them- 
selves of  the  provisions  of  this  act  may  purchase  or  set  off 
for  a  private  cemetery,  land  to  the  extent  of  not  more  than 
three  acres,  and  after  inclosing*  the  same,  shall  cause  to  be 
published  in  a  newspaper  printed  in  the  county  where  the 
land  is  situated,  or  if  there  be  no  newspaper  printed  in  that 
county,  then  in  one  printed  in  an  adjoining  county,  a  notice 
that  a  meeting  of  the  proprietors  of  the  land  so  purchased 
or  set  off,  will  be  held  at  a  time  and  place  designated,  such 
notice  to  be  published  at  least  once  in  each  week  for  six 
weeks  successively  next  previous  to  the  time  of  meeting. 
Such  meeting  shall  consist  of  not  less  than  seven  of  such 
proprietors,  and  shall  then  and  there  elect  not  less  than 
three  of  their  number  as  trustees  to  manage  the  affairs  of 
the  corporation  for  five  years ;  and  in  case  of  the  death  or 
resignation  of  either  of  said  trustees,  the  surviving  or  re- 
maining trustees  shall  be  authorized  to  fill  the  vacancy  for 
the  residue  of  the  term,  from  the  members  of  the  cori)ora- 
tion  ;  and  at  the  end  of  the  said  term  new  trustees  shall  be 
chosen  in  the  same  manner.     (Ibid.  §  2.) 


234  Ecclesiastical  Law  in  the  State  of  Neiv   York. 

§  37.  The  chairman  and  secretaiy  of  the  meeting  shall 
make  a  written  certificate  and  sign  their  names  thereto,  and 
acknowledge  the  same  before  an  officer  authorized  to  take 
the  acknowledgment  of  deeds,  containing  the  names  of  said 
trustees,  and  the  title  of  said  corporation,  and  a  description 
of  the  land,  and  shall  file  the  same  in  the  office  of  the  clerk 
of  the  county  in  which  the  land  so  set  apart  is  situated  ;  and 
thereupon  the  said  proprietors  shall  be  deemed  legally  in- 
corporated, and  shall  possess  the  general  powers,  and  be 
subject  to  the  general  liabilities  which  corporations  by  law 
possess  and  are  subject  to. 

A  certified  copy  of  such  certificate  shall  be  evidence  in 
all  courts  and  places,  of  the  formation  of  such  corporation. 
(Ibid.  §  3.) 

§  38.  No  cemetery  shall  be  established  under  this  law  that 
shall  not  be  inclosed  by  a  suitable  fence  or  wall,  nor  shall 
such  cemetery  be  hereafter  located  at  a  less  distance  than 
one  hundred  rods  from  any  dwelling-house,  without  the 
written  consent  of  the  owner  or  owners  thereof.    (Ibid.  *  4.) 

§  39.  Every  person  who  shall  pull  down  or  deface  any 
fence,  monument,  or  stone,  in  or  about  any  private  cemetery 
incorporated  under  this  act,  shall  forfeit  to  the  said  corpo^ 
ration  a  sum  not  exceeding  five  hundred  dollars  for  each  of- 
fense, to  be  recovered  in  a  court  of  record ;  and  such  offend- 
er shall  be  adjudged  guilty  of  a  misdemeanor.     (Ibid.  §  5.) 

§  40.  Cemeteries,  which  have  been  heretofore  used  for 
private  or  family  interments,  may  be  incorporated  under  the 
provisions  of  this  act,  subject  to  the  provisions  and  condi- 
tions therein  prescribed.     (Ibid.  §  6.) 

§  41.  Birds  in  Cemeteries.  Any  person  who  shall  kill  or 
wound,  or  trap  any  bird,  within  any  public  cemetery  or  public 
burying-ground,  or  who  shall  destroy  any  bird's-nest,  or  re- 
move the  eggs  or  the  young  birds  therefrom,  shall  be 
deemed  g'uilty  of  a  misdemeanor,  punishable  by  a  fine  of 
five  dollars  for  every  bird  killed,  wounded,  or  trapped,  and 
for  every  bird's-nest  destroyed,  or  eggs  or  young  birds  re- 
moved, recoverable  in  any  justices'  court  within  the  county 
where  the  offense  has  been  committed,  to  be  sued  for  by  any 


Burying-groiinch,   Cemeteries,   Vaults.  235 

person  making'  the  complaint.  The  penalty  to  go  towards 
the  support  of  the  poor  of  the  county.  (§  1  of  Act  of  July 
21,  1853,  Laws,  chap.  629.  "An  Act  for  the  Protection  of 
Birds  in  Public  Cemeteries.") 

§  42.  Any  person  who  shall  knowingly  buy  or  sell  any 
bird  which  has  been  killed  or  trapped,  or  shall  have  such 
birds  on  sale,  shall  be  deemed  guilty  of  a  misdemeanor, 
punishable  by  a  fine  of  five  dollars  for  every  bird  bought, 
sold,  or  on  sale,  to  be  recovered  and  to  be  disposed  of  in 
like  manner  as  provided  for  in  the  first  section  of  this  act. 
(Ibid.  §  2.) 

§  43.  Removal  of  Bodies.  Every  person  who  shall  remove 
the  dead  body  of  a  human  being  from  the  grave  or  other 
place  of  interment,  for  the  purpose  of  selling  the  same,  or 
for  the  purpose  of  dissection,  or  from  mere  wantonness,  shall, 
upon  conviction,  be  punished  by  imprisonment  in  the  State 
Prison,  not  exceeding  five  years,  or  in  a  county  jail  not  ex- 
ceeding one  year,  or  by  a  fine  not  exceeding  five  hundred 
dollars,  or  by  both  such  fine  and  imprisonment.  (2  R.  S. 
688,  §  13.) 

§  44,  Every  person  who  shall  purchase  or  receive  the  dead 
body  of  any  human  being,  knowing  the  same  to  have  been 
disinterred  contrary  to  the  provisions  of  the  preceding  sec- 
tion, shall,  upon  conviction,  be  subject  to  the  same  punish- 
ment in  the  said  section  specified.     (Ibid.  §  14.) 

§  45.  Every  person  who  shall  open  a  grave  or  other  place 
of  interment  with  intent  — 

(1.)  To  remove  the  dead  body  of  any  human  being,  for 
the  purpose  of  selling  the  same,  or  for  the  purpose  of  dis- 
section; or, 

(2.)  To  steal  the  coffin,  or  any  part  thereof,  or  the  vest- 
ments, or  other  articles  interred  with  any  dead  body,  shall, 
upon  conviction,  be  punished  by  imprisonment  in  a  State 
prison  not  exceeding  two  years,  or  in  a  county  jail  not  ex- 
ceeding six  months,  or  by  fine  not  exceeding  two  hundred 
and  fifty  dollars,  or  by  both  such  fine  and  imprisonment. 
(Ibid.  §  15.) 

Church-Yards.     The  consecration  of  churches  is  of  the 


236    Ecclesiastical  Laio  in  the  State  of  New  YorJc. 

most  remote  antiquity.  It  is  said,  that  Euginus,  a  Greek, 
and  the  first  who  styled  himself  Pope,  directed  it  in  the  year 
154.  The  Emperor  Justinian  prescribed  a  form  of  conse- 
crating the  place  where  a  church  was  to  be  erected.  The 
consecrated  ground  was  to  be  marked  out.  The  constitu- 
tions of  Otho  and  Othobou  were  very  decisive  upon  this 
head.i 

In  1712  a  form  of  consecrating  churches,  chapels,  and 
church-yards,  was  agreed  upon  by  convocation,  and  is  to  be 
found  in  Burns,  vol.  i.  p.  327,  etc.  The  form  for  a  church- 
yard is  either  when  it  is  consecrated  at  the  same  time  as  the 
church,  or  separately.  Our  own  office  of  consecration  is 
for  a  church  or  chapel  only.  Church-yards  have,  however, 
been  consecrated  in  our  country. 

When  a  church-yard  has  been  enlarged,  there  is  a  new 
consecration  of  the  additional  part.'-^ 

By  Canon  85  of  1603,  the  church- wardens  or  questmen 
shall  take  care  that  the  church-yards  are  well  and  suffi- 
ciently repaired,  fenced,  and  maintained  with  walls,  rails, 
or  pales,  as  hath  been  in  each  place  accustomed,  at  their 
charg-es  unto  whom  by  law  the  same  appertaineth.  And  by 
virtue  of  their  office,  they  are  bound  to  see  that  the  foot- 
paths are  kept  in  proper  order,  and  the  fences  in  repair.  (1 
Curtis'  Rep.  621.) 

These  duties  fall  with  us  upon  the  vestry,  in  its  collective 
capacity. 

In  the  case  of  The  Rector  and  Church-wardens  of  St. 
Johns  V.  The  Parishioners  thereof  (24  Eng.  Law  &  Eq.  Rep. 
595),  it  was  held,  that  nothing  but  an  act  of  Parliament 
would  enable  the  Court  to  apply  consecrated  ground  to  sec- 
ular purposes,  however  advantageous  to  the  public  or  the 
parish. 

And  in  Campl)ell  v.  The  Parishioners  of  Paddington  (24 
Eng.  Law  &  Eq.  Rep.  597),  Dr.  Lushington  repeated  this 
proposition,  but  held  that  a  vestry-room  might  be  erected  in 
a  consecrated  burial-ground,  where  no  bodies  had  been  in- 
terred.    The  uses  were  of  a  religious  nature. 

1  See  Burns'  Ecc.  Law,  vol.  i.  p.  323,  etc.  ^  Gibson's  Codex,  p.  190. 


Burf/ing-grounds,  Cemeteiies,   Vaults.  237 

The  case  of  St.  George's,  Hanover  Square,  v.  Stewart,  was 
cited,  where  a  prohibition  was  granted  against  building  a 
school-house  on  consecrated  ground. 

A  church-yard  adjoining  the  church  has  become  so  as- 
sociated in  our  minds  Avith  ancient  custom  and  religious 
thoughts,  that  we  look  upon  it  as  the  most  fitting  place  for 
the  last  sleep  of  relatives  and  friends.  "  God's  Acre  "  of 
the  parish  church  was  not  merely  the  ground  on  which  the 
building  stood,  but  the  consecrated  soil  around  it,  in  whose 
bosom  the  worshipers  reposed  when  their  prayers  and 
praises  were  hushed  in  death. 

Yet  it  is  certain  that  the  earliest  places  of  burial  were 
without  the  walls  of  cities.  It  is  said  that  Cuthbert,  Arch- 
bishop of  Canterbury,  brought  over  from  Kome  the  cus- 
tom of  burying  in  and  near  churches,  about  the  year  750. 
(Burns,  vol.  i.  p.  256.) 

The  practice  of  burying  in  churches  is  said  to  be  prior  to 
that  of  burying  in  church-yards,  or  places  adjoining,  but 
the  privilege  was  reserved  for  persons  of  preeminent  sanc- 
tity of  life.  It  is  much  discountenanced  by  the  present 
policy  of  the  Church,  as  injurious  to  the  stability  of  the 
fabric,  and  the  health  of  parishioners. ^ 

The  learned  Bingham  shows  clearly  that  the  fact  of  the 
early  Christians  meeting  at  times  in  cemeteries  for  public 
worship,  fails  to  prove  that  they  buried  in  churches,  or  even 
in  cities.  Generally  the  graves  and  monuments  of  the  mar- 
tyrs are  spoken  of  as  being  without  the  walls,  and  churches 
were  often  built  over  them.^ 

It  is  singular,  that  the  burying  in  ground  adjoining 
churches  began  in  connection  with  the  introduction  into 
the  Romish  Church  of  prayers  for  the  remission  of  the 
pains  of  the  departed.  It  is  stated  that  the  practice  of 
burying  in  remote  places  continued  to  the  age  of  Gregory 
the  Great,  when  the  monks  and  priests  beginning  to  offer 
prayers  for  the  souls  of  the  dead,  procured  leave,  for  their 
greater  ease  and  profit,  that  liberty  of  sepulture  might  be 
in  churches,  or  places  adjoining  them. 

1  3  Phillimore,  349  ;  4  Haggard,  174.  -  See  vol.  viii.  p.  94,  etc. 


238    Ecclesiastical  Laiv  in  the  State  of  Neiv   YorJc. 

The  parishioners  have  iu  England  a  right  to  be  buried  in 
the  parish  church-yard,  without  paying  any  fee  except  from 
immemorial  custom. 

"  About  the  year  650,  spaces  of  ground  adjoining  the 
churches  were  carefully  inclosed,  and  solenmly  consecrated 
and  appropriated  to  the  burial  of  those  who  had  been  enti- 
tled to  attend  divine  service  in  those  churches,  and  who  now 
had  become  entitled  to  render  back  unto  those  places  their 
remains  to  earth,  the  common  mother  of  mankind,  without 
payment  for  the  ground  which  they  were  to  occupy,  or  for 
the  pious  offices  which  solemnized  the  act  of  interment."  ^ 

The  right  of  a  parishioner  to  burial  in  the  church-yard 
of  his  own  parish  church,  was  so  exclusive  that  it  was 
against  law  to  bury  any  stranger  therein,  except  with  the 
permission  of  the  church-wardens,  and  perhaps  the  incum- 
bent. It  might  interfere  with  the  room  necessary  for  the 
interment  of  parishioners.^ 

In  our  State  and  churches,  no  such  right  exists  in  parish- 
ioners. The  trustees  may  adopt  by-laws  for  regulating  the 
mode,  time,  and  fees  for  interments,  whether  in  the  church- 
yard proper,  or  in  ground  purchased  under  the  statute  before 
cited.     {Ante,  §  1.) 

Vaults.  The  trustees  may  allow  the  erection  of  vaults, 
upon  such  conditions  as  they  shall  think  proper. 

The  law  of  England  appears  to  be  that  a  faculty,  as  it  is 
termed,  for  the  erection  of  a  vault,  will  be  granted  only  upon 
the  assent  of  the  rector,  church-wardens  (and  ordinary,  if  it 
is  to  be  in  the  chancel).  It  must  be  limited  like  a  faculty 
for  pews,  to  the  use  of  the  family,  "  so  long  as  they  con- 
tinue parishioners  and  inhabitants ;  "  and  the  Court  must  be 
satisfied,  that  it  is  not  likely  to  be  prejudicial  to  the  parish.^ 

In  the  case  of  Windt  v.  The  German  Reformed  Church  (4 
Sandf.  Ch.  Rep.  471),  the  subject  of  the  rights  of  vault- 
holders  was  discussed.  The  defendants,  a  corporation, 
bought  lots  in  1823,  and  used  them  for  a  burial-ground. 

1  Per  Lord  Stowell,  in  Gilbert  v.  Buzzard,  3  Pliillimore,  349. 

2  Burns,  vol.  i.  258. 

*  Burns'  Ecc.  Law,  vol.  i.  p.  273  a,  etc. 


Biiri/ing-groiinds,   Cemeteries,   Vaults.  239 

No  instrument  of  any  kind  was  executed  by  them,  g'iving  a 
right  of  burial.  Upon  allowing  graves  to  be  opened,  and 
bodies  deposited,  a  certain  fee  was  charged.  In  184G,  they 
had  obtained  an  order  from  the  Vice-Chancellor,  allowing 
them  to  sell  the  lots,  and  had  purchased  some  others  for 
burying  at  Brookwick,  Long  Island.  The  plaintiffs,  relatives 
or  representatives  of  buried  persons,  sought  an  injunction 
to  restrain  the  removal  of  the  remains. 

It  was  held,  that  there  was  no  title  to  the  land  occupied 
by  the  body  interred.  There  was  a  right  to  have  it  undis- 
turbed, so  long  as  the  cemetery  continued  to  be  used  as 
such,  and  also  the  right,  in  case  the  land  was  sold,  for  sec- 
ular purposes,  to  have  such  remains  removed,  and  properly 
deposited  in  a  new  place  of  sepulture. 

The  restrictions  of  the  Act  of  1842,  before  cited,  were 
then  noticed,  and  it  was  suggested  whether  the  Court  now 
possessed  (under  the  section  relating  to  the  sanction  of  a 
sale)  any  control  over  the  subject,  in  reference  to  the  pre- 
vious use  of  the  ground  for  burying,  "  where  the  requisite 
consent  of  three  fourths  had  been  obtained  to  a  sale  or 
mortgage." 

Where  vaults  or  burying  lots  have  been  conveyed  by  re- 
ligious corporations,  some  rights  of  property  are  conferred 
upon  the  purchasers.  This  was  the  case  with  the  instru- 
ments executed  by  the  corporation  of  the  Brick  Presbyterian 
Church.     (3  Ed.  Ch.  Rep.  155.) 

In  that  case,  the  form  of  the  instrument  transferring  the 
g-round  for  a  vault  was  such  as  to  transfer  a  title  to  the  soil 
without  restriction  or  limitation.  The  Vice-Chancellor  held, 
that  the  property  could  not  be  sold  without  the  consent  of 
the  vault-holder. 

It  subsequently  became  common  to  grant  only  the  use  and 
occupancy  of  the  space  allotted,  so  long  as  the  corporation 
continued  to  occupy  the  edifice  and  grounds,  for  religious 
purposes. 

In  the  case  of  Richards  v.  The  Northwest  Protestant 
Dutch  Church  (32  Barbour,  42),  the  subject  was  considered. 
The  owner  of  a  vault  was  treated  as  possessing  a  similar 


240    Ecclesiastical  Law  in  the  State  of  Nciv   York. 

right  to  that  of  the  owner  of  a  pew.  It  was  a  right  to  the 
use  and  exclusive  possession  of  the  space,  for  burying  pur- 
poses, so  long  as  the  property  remained  unchanged  and 
devoted  to  religious  objects.  If  the  soil  was  sold  with  the 
sanction  of  the  Court,  the  right  or  easement  was  terminated. 

In  4  Bradford's  Reports,  503,  is  an  opinion  of  S.  B. 
Euggles,  Esquire,  as  referee  in  the  matter  of  widening 
Beekman  Street.  His  report  to  the  Supreme  Court  was 
confirmed,  and  payment  for  vaults  directed  in  conformity 
to  it. 

The  case  arose  upon  the  petition  of  the  corporation  of  the 
Brick  Presbyterian  Church,  stating  an  award  of  commis- 
sioners of  estimate  and  assessment  for  widening  Beekman 
Street,  awarding  828,000  for  a  piece  of  land  taken.  That 
the  piece  comprised  vaults  for  the  burial  of  the  dead,  in 
which  various  individuals  claimed  certain  rights  of  inter- 
ment, and  the  use  thereof  as  vaults.  That  subject  to  such 
rights,  the  church  was  entitled  to  the  whole  amount. 

The  order  of  reference  was  to  ascertain  the  parties  inter- 
ested in  the  fund,  and  in  what  proportions. 

The  referee  noticed  the  form  of  the  instruments,  and  the 
decision  of  Vice-Chancellor  McCoun,  3  Edw.  Ch.  Rep.  155, 
respecting  them.  They  conferred  a  title  to  the  land,  and 
not  merely  an  easement  in  it.  They  conveyed,  however,  a 
base  fee  and  not  a  fee-simple  absolute.  It  was  the  quality 
of  the  fee,  the  restrictions  upon  the  usufruct,  the  enjoyment 
for  only  one  specific  pnrpose,  that  rendered  it  less  valuable. 

The  cost  of  a  vault  of  equal  dimensions  in  Greenwood 
Cemetery,  and  the  cost  of  removing  the  remains,  formed 
the  basis  of  the  valuation  which  the  referee  adopted. 

We  notice  that  here  the  land  was  taken  for  public  pur- 
poses in  exercise  of  the  right  of  eminent  domain.  The  case 
of  course  is  different  where  the  property  is  voluntarily  sold 
by  the  corporation. 

The  form  of  the  instrnment  given  by  St.  Thomas'  Church 
in  the  city  of  New  York  was  as  follows :  "  Received,  etc., 
being  the  purchase-money  for  the  use  of  Vault  No.  — ,  built 
upon  the  premises  held  by  St.  Thomas'  Church,  in  the  city 


Burying -grounds,  Cemeteries^   Vaults.  241 

and  county  of  New  York,  situate  in  Houston  Street  in  said 
city.    In  consideration  whereof,  the  said  St.  Thomas'  Church 

doth  aarree  and  covenant  with  the   said his 

heirs,  executors,  and  assigns,  that  he  or  they  shall  have  the 
sole  right  to  the  use  of  said  vault,  as  a  family  vault,  so  long- 
as  the  said  corporation  shall  continue,  unless  such  use  shall 
be  prohibited  by  the  corporation  of  the  city."     It  was  sealed. 

The  church  applied  for  an  order  authorizing  a  sale  of  the 
whole  property.  Justice  Bonney  considered  that  the  grants 
amounted  to  demises,  for  rent  paid  in  advance,  of  the  use  of 
portions  of  such  real  estate,  and  were  legal  under  section  4 
of  the  Act  of  1813.  And  the  Court  was  bound  in  allowing  a 
sale,  to  protect  the  equitable  rights  of  the  vault-holders. 
An  order  was  entered  for  a  sale,  "  subject  to  the  rights  of 
such  vault-holders  as  shall  not  release." 

Negotiations  for  a  settlement  ensued,  in  which  many 
vault-holders  agreed  to  take  a  sum  about  one  half  of  the 
value  of  the  parcels  of  ground  occupied  by  the  vaults.  The 
case  has  not  gone  further  in  the  coui-ts  at  present. 

We  thus  see  that  the  question  of  strict  law  is  not  yet  de- 
cided ;  that  is,  whether  the  corporation,  the  consent  of  the 
Supreme  Court  being  had,  could  make  a  good  title  and 
the  vault-holders  be  compelled  to  look  to  the  proceeds  or 
the  body  for  indemnity,  or  whether  the  release  of  the  vault- 
holders  was  essential.  I  refer  now  to  the  case  of  instru- 
ments like  that  given  by  St.  Thomas'  Church. 

That  the  corporation  can,  under  the  power  to  lease  their 
property,  lease  for  the  term  of  their  continuing  a  corpora- 
tion, which  may  be  in  perpetuity  (equivalent  as  to  quality  of 
estate  to  a  sale),  is  not  perhaps  quite  clear.  If  the  instru- 
ment was  simply  a  covenant,  the  remedy  would  be  an  action 
for  its  breach,  and  damages. 

Coffins.  In  our  country,  the  habit  of  inclosing  the  body 
of  the  dead  in  a  coffin  is  so  universally  prevalent,  that  it  may 
be  said  to  attend  the  right  of  interring  in  a  particular  place. 
Yet  at  former  periods  it  was  a  right  of  no  absolute  charac- 
ter.    "  Some  involucra  or  coverings,"  says  Lord  Stowell,^ 

1  Gilbert  v.  Buzzard,  3  PMUimore's  Rep.  335. 


242    Ecclesiastical  Law  in  the  State  of  New  York. 

"have  been  necessary  in  all  civilized  and  Christian  coun- 
tries ;  but  chests  or  trunks  containing  the  bodies,  descend- 
ing along  with  them  to  the  grave,  and  remaining  there  till 
their  own  decay,  cannot  plead  either  the  same  necessity  or 
the  same  general  use.  In  our  own  country,  the  use  of  cof- 
fins is  extremely  ancient,  though  most  probably,  by  no  means 
general ;  they  are  not  mmhudive  or  directly  required  l)y  any 
authority  whatever ;  and  it  is  to  be  observed,  that  in  the 
Funeral  Service  of  the  Church  of  England,  there  is  no  men- 
tion—  indeed,  there  is  rather  a  studious  avoidance  of  any 
mention  —  of  coffins.  It  is,  throughout  the  whole  service, 
the  corpse  or  the  hody.  Funerals  were  anciently  coffined,  or 
unconfined,  and  were  charged  for  accordingly.  From  which 
I  miaht  venture  to  draw  the  conclusion,  that  even  at  that 
time  (1627),  it  was  recognized  as  not  unjust,  that  where  the 
deceased,  by  the  use  of  a  coffin,  took  a  larger  occupancy  of 
the  ground,  he  should  compensate  the  parish  by  an  increased 
payment." 


CHAPTER  XX. 

PEWS   AND    PEW-HOLDERS. 

Before  the  Reformation,  no  seats  were  allowed  nor  any- 
distinct  portions  of  the  church  assigned  to  particular  parties, 
except  in  some  exceptional  cases  for  great  persons.  The 
seats  were  movable,  and  the  property  of  the  incumbent,  and 
old  wills  are  found  disposing  of  them.^ 

It  is  stated  that  the  earliest  date  of  a  pew  now  to  be  found 
in  England  is  in  Geddington,  Northamptonshire,  in  1602. 

But  in  the  time  of  Bishop  Owen,  of  Hereford,  they  had 
become  so  frequent  as  to  be  the  subject  of  an  Article  of  Vis- 
itation :  "  Are  all  the  seats  and  pews  so  ordered,  that  they 
which  are  in  them  may  kneel  down  in  time  of  prayer,  and 
have  their  faces  up  to  the  holy  table  ?  " 

Generally  the  seats  in  churches  were  to  be  built  and  re- 
paii'ed,  as  the  church  was  to  be,  at  the  general  charge  of 
the  parisliioners,  unless  any  particular  person  be  chargeable 
to  do  the  same  by  prescription. ^ 

Although  the  freehold  of  the  body  of  the  church  be  in 
the  incumbent,  and  the  seats  thereof  be  fixed  to  the  free- 
hold, yet  because  the  church  is  dedicated  to  the  service  of 
God,  and  is  for  the  use  of  the  inhabitants,  and  the  seats  are 
erected  for  their  more  convenient  attendance  on  divine  ser- 
vice, the  use  of  them  is  common  to  all  the  people  that  pay  to 
the  repair  thereof.  Every  person  who  settles  as  a  house- 
holder has  a  right  to  call  on  the  parish  for  a  convenient 
seat.^  It  is  clearly  the  law  that  a  parishioner  has  a  rig'ht  to 
a  seat  without  paying  for  it.^ 

The  incumbent  has  no  authority  in  the  seating  and  ar- 
ranging the  parishioners,  beyond  that  of  an  individual  mem- 

1  Hook's  Dirt.,  Tit.  Pews.  2  3  Burns,  358. 

8  1  Consis.  Rep.  196.  *  Ibid.  317. 


244    Ecclesiastical  Laiv  in  the  State  of  New   York. 

ber  of  the  vestiy  ;  it  is  not  the  vicar,  hut  the  vestry,  which 
appropriates  the  seats,  the  general  superintendence  being 
with  the  ordinary .1  The  latter  may  grant  a  pew  to  a  par- 
ticular person  while  he  remains  in  the  parish,  or  there  may 
be  a  prescription ;  but  as  to  personal  property  in  a  pew,  the 
law  knows  no  such  thing.  (3  Phillimore,  16.)  The  appro- 
priation of  pews  is  generally  made  by  the  church-wardens 
under  the  directions  of  the  ordinary.  For  that  purpose 
they  are  his  officers.     (1  Phill.  316 ;  1  Haggard,  394.) 

The  earliest  notice  I  have  found  of  a  parliamentary  sanc- 
tion for  the  selling  or  renting  of  pews,  is  in  the  Act  of  58 
George  III.,  cap.  45,  (1818).  By  the  75th  section,  a  part 
of  the  sittings,  not  less  than  one  fifth  of  the  whole,  were 
to  be  marked  with  the  words,  "  Free  Seats,"  and  reserved 
for  the  use  of  poor  persons  resorting  thereto,  upon  whom  no 
rent  was  to  be  charged.  Subscribers,  being  parishioners, 
were  to  have  the  choice  of  pews  at  the  rate  fixed  by  the 
commissioners.  Church  or  chapel- wardens  were  not  to  let 
or  sell  any  pews  or  seats  to  others  than  parishioners  during 
their  continuing  inhabitants  of  the  parish. 

By  the  charter  of  Trinity  Church  of  1697,  this  practice  is 
recognized  and  regulated.  The  church-wardens  were  only 
to  dispose  of  a  pew  or  place  to  an  inhabitant,  unless  the  ves- 
trymen consented.  And  in  1748,  directions  were  given  as 
to  letting  pews  in  St.  George's  chapel. 

Dr.  Berrian  gives  the  form  of  an  assignment  of  a  pew  in 
Trinity  Church.  The  burden  of  repairing  it  was  upon  the 
assignee,  and  it  was  to  revert,  if  he  ceased  to  be  an  inhabi- 
tant of  the  city.  ("  History  of  Trinity  Church,"  etc.,  26.) 
At  page  338  is  a  list  of  the  grants  or  patents  for  pews  sold. 

The  rights  of  a  pew-holder  in  a  pew  under  the  general 
law,  and  under  the  language  of  all  the  instruments  given 
by  churches,  which  have  fallen  under  my  notice,  is  an  incor- 
poreal hereditament.  It  is  more  than  an  easement.  It  is 
connected  with  the  land,  and  has  some  of  the  qualities  of 
realty.  It  passes  to  the  heir  at  law.  (3  Kent's  Conim.  402 ; 
McKnabb  v.  Pond,  4  Bradford's  Rep.  7,  Surrogate's  Court, 

1  TattersaJl  v.  Knight,  1  PhUlimore,  233. 


Pews  and  Peiu-holdcrs.  2-io 

New  York.)  It  requires  a  writing  to  pass  the  title  as  an 
interest  in  land.  (Viele  v.  Osgood,  8  Barbour's  N.  Y.  Rep. 
130 ;  St.  Paul's  Churcli  v.  Ford,  34  Barbour,  16  ;  and  par- 
ticularly, The  First  Baptist  Church  v.  Bigelow,  16  Wendell, 
28.) 

The  usufructuary  rig-lit  is  a  right  to  some  extent,  in  the 
soil,  as  well  as  in  the  structure  upon  it.  This  enables  the 
holder  to  sustain  ejectment  or  trespass  quare  clausum  /regit, 
as  was  held  in  Shaw  v.  Beverige,  3  Hill's  N.  Y.  Rep.  26 ; 
and  is  laid  down  by  Chancellor  Kent  (3  Comm.  402),  and 
by  Chancellor  Walworth  (3  Paige's  Rep.  302).  This  distin- 
guishes our  law  from  the  English,  under  which  such  an  ac- 
tion could  not  be  supported,  because  the  freehold  is  in  the 
incumbent. 

This  right  in  the  soil  is  attached  to  the  pew.  It  gives, 
indeed,  no  power  to  dig  a  vault  under  it  without  consent. 
It  is  subject  to  the  paramount  ownership  of  the  trustees,  to 
be  exercised  in  cases  of  necessity,  of  important  improve- 
ments, or  a  legalized  sale. 

It  is  quite  clear,  that  in  the  State  of  New  York,  a  pew- 
holder  has  no  such  right  to  a  pew,  or  the  ground  on  which 
it  stands,  as  will  prevent  a  sale  of  the  church  edifice  and 
soil,  if  the  assent  of  the  Supreme  Court  is  obtained.  A 
sale  or  permanent  lease  of  a  pew  is  subject  to  this  condition. 
The  purchaser  takes  with  presumptive  knowledge  of,  and 
assent  to,  the  same.  (Wheaton  v.  Gates,  18  N.  Y.  Rep.  395.) 

The  Church  of  the  Ascension  (when  in  Canal  Street),  was, 
it  may  be  said,  completely  destroyed  by  fire.  The  vestry 
determined  against  rebuilding-  on  the  same  site,  and  upon 
moving  to  the  present  situation  on  Fifth  Avenue.  The 
pew-holders  were  settled  with,  by  allowing  all  who  purchased 
pews  in  the  new  building,  the  amount  they  had  paid  in  the 
former,  as  part  of  the  purchase-money.  Mr.  Peter  A.  Jay 
was  the  legal  adviser. 

So  in  the  case  of  the  Church  of  the  Incarnation,  where  a 
sale  was  made  under  the  statute,  of  the  building  and  ground, 
and  the  present  new  church  was  built,  precisely  the  same 
course  was  adopted. 


246    Ecclesiastical  Law  in  the  State  of  New   YorJc. 

In  the  case  of  Trinity  Church,  when  the  present  edifice 
was  erected,  the  subject  was  much  considered.  The  edifice 
was  nearly  unfit  for  public  worship,  and  its  entire  demolition 
was  necessary  in  order  to  erect  a  larger  one,  fitted  to  accom- 
modate worshipers.  The  case  might  fairly  be  considered 
as  one  of  a  destruction  from  necessity.  Mr.  G.  C.  Verplank 
gave  an  opinion,  denying  the  legal  rights  of  the  pew- 
holders  ;  but  by  an  arrangement,  the  old  pew-holders  were 
allowed  an  abatement  on  the  price  of  new  pews. 

Let  it  be  granted,  that  this  course  was  not  in  consequence 
of  a  legal  obligation  ;  yet  it  is  of  so  strong  an  equity,  that 
it  has  been  made  an  express  statutory  provision  in  the  State 
of  Maine. 

"  When  a  meeting-house  is  altered  or  rebuilt,  pews  must 
be  assigned  to  the  former  pew-holders,  conformable,  as 
nearly  as  practicable,  to  those  before  held  by  them."  (Ty- 
ler's Am.  Ecc.  Law,  §  339,  and  statute  cited.) 

The  following  is  a  review  of  the  leading  authorities  in  the 
State  of  New  York. 

In  Freligh  v.  Piatt  (5  Cowen,  494),  all  that  is  material  is 
the  lauguag-e  of  the  Court,  that  a  pew-holder  has  a  limited 
usufructuary  right.  If  the  house  be  burned  or  destroyed, 
the  rig-ht  is  gone. 

In  Henry  v.  St.  Peter's  Church  (2  Edw.  Rep.  608),  the 
resolution  was  to  take  down  the  old  church,  and  erect  a  new 
one  of  an  enlarged  size  and  accommodations.  The  Vice- 
Chancellor  refused  to  interfere  by  injunction.  If  the  com- 
plainant had  any  right,  it  could  be  settled  afterwards,  when 
he  came  to  demand  a  pew  in  the  new  church.  There  was 
no  ground  to  interfere  with  the  trustees'  power  of  alteration 
for  the  general  benefit. 

In  the  Matter  of  the  Brick  Church  (3  Edw.  Rep.  156),  it 
was  held,  that  the  right  of  a  pew-holder  was  limited  in  du- 
ration, to  continue  so  long  as  the  church  edifice  stands ;  his 
right  is  subordinate  to  the  right  of  pulling  down  and  re- 
moving. A  pew-holder,  if  a  corporator,  will  be  so  still  after 
a  change  of  location.  The  order  for  a  sale  of  the  property 
could  be  made  without  prejudice  to  the  legal  rights  of  pew- 
holders  in  the  new  building. 


Pews  and  Peiv-holders.  247 

When  the  present  Brick  Church  was  erected  in  Fifth 
Avenue,  the  same  course  as  to  owners  of  old  pews  pur- 
chasing in  the  new  building  was  pursued,  and  a  valuation 
allowed,  as  in  the  cases  of  the  Churches  of  the  Ascension 
and  Incarnation.' 

In  Morrison  v.  St.  Peter's  Church  (7  Legal  Observer, 
361),  the  trustees  had  adopted  a  plan  of  altering  and  ex- 
tending the  church,  which  considerably  changed  the  situa- 
tion of  the  plaintiff's  pew,  in  regard  to  the  pulpit  and 
chancel,  but  did  not  interfere  with  his  possession.  The 
Court  said :  Everything  granted  to  him  by  the  instrument 
remained.  If  the  value  of  the  pew  was  depreciated,  it  was 
a  contingency  to  which  he  was  liable ;  the  trustees  being 
in  the  exercise  of  an  undoubted  power,  and  acting  in  good 
faith. 

The  case  of  Shaw  v.  Berige  (3  Hill's  Rep.  26),  has  been 
before  noticed  for  the  point  decided.  The  general  doctrine 
of  the  right  of  a  pew-holder  being  subservient  to  the  para- 
mount right  of  the  trustees  or  corporation,  is  recognized. 

In  the  case  of  the  Reformed  Dutch  Church  (16  Barbour, 
237),  the  law  was  stated  that  the  trustees  could  no  more  sell 
a  pew  so  as  to  give  an  absolute  title  to  the  purchaser  without 
an  order  of  Court,  than  it  could  sell  the  church  edifice  with- 
out it.  The  title  conferred  is  the  right  to  occupy  the  pews 
for  the  purposes  of  public  worship. 

Voorhies  v.  The  Presbyterian  Church  (17  Barbour,  103  ;  8 
Barbour,  135),  is  the  strongest  positive  decision  in  our 
books.  The  edifice  was  in  a  ruinous  and  dangerous  state. 
The  trustees  rebuilt  it  except  the  walls.  They  changed  the 
inside  so  that  the  pulpit  was  placed  in  the  situation  of 
the  plaintiff's  pew.  It  was  held,  that  they  had  a  right  to  do 
this,  and  the  party  was  without  a  remedy.  "  If,  in  doing 
this  {rebuilding),  the  pews  are  necessarily  destroyed,  the 
pew-holders  cannot  sustain  trespass  or  ejectment." 

In  Cooper  v.  The  First  Presbyterian  Church,  etc.  (32 
Barbour,  222),  Mr.  Justice  Bokee  entered  largely  upon  the 

^  Mr.  Daniel  Lord  has  informed  me,  that  he  believes  this  was  not  considered  a 
strict  legal  right,  but  a  matter  of  equity  and  propriety. 


248  Ecclesiastical  Law  in  the  State  of  Neiv   York. 

questions.  He  recognized  the  principle  of  several  Massa- 
chusetts cases,  as  to  the  right  of  changing  or  taking  down 
the  church  building.  In  case  of  a  destruction  from  neces- 
sity, no  compensation  could  be  demanded ;  but  if  done  for 
reasons  of  convenience  or  propriety,  it  could  be. 

The  case  arose  upon  a  motion  for  an  injunction  by  pew- 
holders  to  restrain  the  removal  of  pews,  and  erecting  of 
slips  or  other  structures  in  their  place. 

The  learned  judge,  after  observing  that  the  question  of 
important  alterations  should  be  decided  by  a  majority  of  the 
members  assembled,  adds  :  "No  one  would  be  driven  from 
the  church,  but  a  seat  or  occupancy  during  public  worship 
(which  is  all  any  one  possessed),  would  be  provided ;  and  if 
as  good  and  equally  commodious,  although  of  a  different 
form,  no  claim  for  damages  could  be  sustained." 

The  leading  cases  in  Massachusetts  are,  Kimball  x). 
Rowley,  24  Pickering,  347 ;  Gay  v.  Barker,  17  Mass.  435  ; 
Gordon  v.  Waddell,  9  Gushing,  508 ;  Facet  v.  Boylston,  19 
Pick.  361. 

In  Gay  v.  Barker,  it  was  held,  that  a  parish  may  take  down 
the  church  edifice,  and  rebuild  on  the  same  ground,  or  may 
alter  the  shape  and  form,  to  make  it  more  convenient.  If  in 
doing  so,  the  pews  are  destroyed,  the  parish  must  provide 
an  indemnity  on  just  and  equitable  principles. 

"  Unless  the  edifice  is  unfit  for  public  W'Orship,  and  so  old 
and  ruinous  as  to  render  its  entire  demolition  necessary,  a 
pew-holder  would  be  entitled  to  indemnity  for  the  destruc- 
tion of  his  pew.  But  if  the  parish  abandon  the  edifice, 
when  it  continues  fit  for  public  worship,  and  erect  a  new 
one  on  a  different  site,  it  does  not  subject  itself  to  any  lia- 
bility to  a  pew-holder,  unless  it  does  it  maliciously." 

This  i)assage  is  from  Mr.  Tyler's  work  ("  Ecclesiastical 
Law,"  section  445),  and  seems  to  be  a  correct  statement  of 
the  result  of  the  Massachusetts  cases. 

The  case  of  Kellogg  v.  Dickenson  (18  Vermont  Rep.  266), 
may  be  also  usefully  referred  to.  If  a  church  edifice  is 
taken  down  from  necessity,  because  it  has  become  ruin- 
ous and  unfit  for  the  purposes  of  worship,   no   compensa- 


Petvs  and  Peiv-holders.  240 

tion  is  to  be  made.     In  other  cases  of  alterations,  it  must 
be. 

Mr.  Buck  of  Boston,  lias  lately  publislied  a  work  on  the 
ecclesiastical  law  of  Massachusetts ;  and  he  states  the  law 
on  this  head  to  be,  "  that  no  compensation  is  given  where 
the  house  is  taken  down  on  account  of  its  permanent  unfit- 
ness for  public  worship.  Otherwise,  if  it  is  temporarily 
unfit,  and  does  not  require  entire  demolition."     (p.  140.) 

In  Wheaton  v.  Gates  (18  N.  Y.  Rep.  396),  Judge  Denio 
thus  states  the  rules :  "  If  the  edifice  were  destroyed,  or  if 
it  became  permanently  unfit  for  the  purposes  of  public  wor- 
ship, the  rights  of  pew-holders  ceased.  I  do  not  say  what 
interests  they  would  retain  in  case  of  extension  and  costly 
reparations,  and  great  changes  not  destroying  the  identity 
of  the  building ;  for  that  question  is  not  before  us.  Where 
the  edifice  was  reasonably  capable  of  further  use  as  a  church, 
the  interests  of  the  pew-holders  would,  no  doubt,  be  a 
subject  to  be  considered  by  the  Court."  This  was  said  in 
reference  to  an  application  for  a  sale.  "  But  if  overruling 
considerations  existed,  rendering  it  expedient  upon  the 
whole  matter,  that  a  sale  should  take  place,  the  interests  of 
owners  of  pews  would  necessarily  be  destroyed." 

From  these  authorities  we  may  conclude :  That  when  a 
removal  has  been  decided  upon,  and  has  been  sanctioned,  as 
when  an  approval  by  the  Court  to  a  sale  has  been  obtained, 
the  rights  of  a  pew-holder  stricti  juris  are  terminated.  The 
situation  of  a  church  edifice  as  to  its  fitness  for  worship 
has  not  a  decisive,  and  may  not  have  any  influence  upon 
the  question. 

When  an  absolute,  utter  demolition  has  taken  place, 
whether  it  has  proceeded  from  the  fall  of  the  building,  from 
decay,  entire  destruction  by  fire,  or  a  justifiable  tearing 
down  on  account  of  decay  and  danger,  and  a  rebuilding  on 
the  site,  it  is  probable,  the  rights  of  pew-holders  are  also  at 
an  end.  But  it  must  be  noticed  that  there  is  not  a  case  in 
our  State  deciding  the  point  distinctly.  There  is  as  much 
indirect  authority  supporting  some  right  in  the  pew-holder, 
as  against  it.     "  While  the  house  remains,  the  right  to  the 


250    Ecclesiastical  Law  in  the  State  of  Neiv   York. 

pew  is  absolute."  And  see  the  cases  before  the  Vice-Chan- 
cellor,  before  cited. 

In  the  case  of  St.  George's  Church,  Stuyvesant  Square, 
several  important  questions  arose.  An  opinion  was  taken 
from  the  writer  and  Mr.  S.  Cambreling.  The  main  facts 
were  as  follows  :  — 

St.  George's  Church  was  erected  out  of  funds  of  the  cor- 
poration, and  cost  about  $275,000.  The  vestry  affixed  a 
price  or  valuation  on  each  of  the  pews,  except  two  specially 
reserved.  The  amount  of  such  valuation  was  $115,856. 
They  were  sold  upon  permanent  leases  at  such  prices,  sub- 
ject to  such  rent  or  assessment  as  the  vestry  might  impose. 
Many  pews  were  purchased,  down  to  the  fire  in  1805 ;  others 
were  leased  from  year  to  year  at  fixed  rates.  The  form  of 
the  transfer  of  pews  sold  was  as  follows :  — 

"  Know  all  men  by  these  presents,  that  we,  the  Rector, 
Church-wardens,  and  Vestrymen  of  St.  George's  Church,  in 

the  city  of  New  York,  in  consideration  of  the  sum  of 

dollars,  paid  to  us  by of  said  city,  the  receipt 

whereof  is  hereby  acknowledged,  have  granted  and  sold,  and 

by  these  presents  do  grant  and  sell,  unto  the  said 

,  all  that  certain  pew  in  said  Saint  George's  Church, 


in  the  city  of  New  York,  fronting  on  Sixteenth  Street  and 
Rutherford  Place;  such  pew  being  known  and  numbered  — . 

To  have  and  to  hold  the  same  unto  the  said , 

his  heirs  and  assigns,  so  long  as  the  said  church  edifice  shall 
emlure,  subject  to  such  annual  rent  as  we,  or  our  successors, 
shall  from  time  to  time,  impose  on  the  said  pew.  Provided, 
that  if,  at  any  time,  default  be  made  in  the  payment  of  such 
rent  for  the  space  of  two  years,  it  shall  be  lawful  for  us  and 
our  successors  to  reenter  on  the  said  pew,  and  sell  and  dis- 
pose of  the  same  in  like  manner  as  if  these  presents  had 
never  been  made  or  executed,  rendering  the  surplus  moneys, 
after  deducting  all  the  arrears  of  rent  then  due  with  inter- 
est thereon,  and  all  costs  and  charges  attending  such  sale, 

to  the  said ,  his  heirs  or  assigns.     Provided, 

also,  that  no  alteration  shall  l)e  nuide  in  the  said  pew  hereby 
granted,  and  that  no  assignment  or  sale  of  the  same  shall 


Peivs  and  Peiv-liolders.  251 

be  valid  and  effectual  without  the  consent  of  the  said  church 
thereunto  obtained." 

The  church  took  fire  in  November,  18G5.  The  roof,  gal- 
leries, pews,  floor,  stairs,  doors,  and  windows  were  destroyed, 
except  those  of  the  two  vestry-rooms,  which  were  damag-ed. 
The  main  outer  walls  remained  standing,  although  greatly 
damaged  on  the  inner  lace.  The  stone  work  around  the 
endows  and  doors  was  injured  so  as  to  be  unfit  for  use,  and 
the  wall  between  the  porch  and  the  body  of  the  church 
was  so  damaged  that  it  had  to  be  removed.  The  stone 
towers  were  damaged,  but  capable  of  being  repaired. 

The  amount  insured  upon  the  church  was  $70,000,  which 
was  collected.  The  cost  of  rebuilding  was  stated  at  -$164,- 
000.  Contributions  had  been  made  to  $70,000,  without  any 
conditions  as  to  the  appropriation  of  the  new  pews.  The 
contributions  were  in  part  from  persons  who  held  deeds  for 
their  pews,  and  partly  from  others. 

At  the  time  of  the  fire,  there  had  been  101  pews 

deeded,  of  the  price  of        .         .         .         $54,900 

And  not  deeded  "      "  ....      60,950 


$115,850 
To  pay  for  the  reparations  of  every  kind,  about  $24,000 

was  required  beyond  the  insurance  money  and  contributions. 
The  following  opinion  was  given :  — 
Upon   the   case   submitted   to  us   by   the   vestry  of  St. 

George's  Chnrch,  and  the  questions  annexed,  we  reply  — 

1.  The  vestry,  without  the  sanction  of  the  parisliioners, 
had  the  right  to  decide  upon  the  propriety  of  rebuilding  the 
church  in  its  former  situation,  and  npon  the  plan  of  re- 
building. We  do  not  consider  that  the  vestry  was  under 
any  legal  obligation  to  the  pew-holders  by  deed,  to  rebuild. 
Their  duty  embraced  the  whole  body  of  worshipers,  and  to 
carry  out  great  religious  purposes.  But  having  so  decided, 
and  without  a  dissenting  opinion,  they  were  authorized  to 
adopt  a  plan  varied  or  otherwise,  and  to  apply  the  insurance 
money  and  other  funds  within  their  control  to  the  object. 

2.  The  parties  who  merely  rented  pews  from  year  to  year, 


252    Ecelesiastical  Laio  in  ihe  State  of  New   York. 

the  time  having  expired,  have  no  claims  upon  the  corpora- 
tion, and  are  under  no  obligations  to  it.  We  do  not  see 
that  any  question  can  arise  as  to  this  class. 

3.  We  understand  that  some  of  the  contributors  are  not 
pew-holders.  We  consider  that  the  contributions  made  by 
them  impose  no  legal  obligation  on  the  vestry  to  transfer  to 
them  pews  or  seats. 

4.  As  to  the  pew-holders  under  the  instruments  of  trans- 
fer from  the  vestry  — 

(1.)  We  do  not  think  that  any  separate  right  has  accrued 
to  such  pew-holders,  by  reason  of  their  subscriptions  or 
donations  towards  the  erection  of  the  new  edifice,  upon  the 
facts  in  the  case.  The  pew-holders  who  have  not  subscribed 
and  they  who  have,  are,  in  relation  to  the  corporation,  upon 
the  same  legal  footing. 

(2.)  We  understand  that  the  pews  on  the  floor  and  in  the 
galleries,  will  be  the  same  substantially  as  before ;  that  the 
pews  will  respectively  actually  occupy  the  same,  or  nearly 
the  same,  site  as  before,  or  with  immaterial  deviations. 

An  occupant  of  a  former  pew  can  be  reinstated  in  the 
same  or  nearly  the  same  position. 

We  are  of  opinion,  that  upon  the  new  edifice  being  com- 
pleted, the  rights  are  so  far  revived,  as  that  the  pew-holder 
should  be  entitled  to  occupy,  upon  the  same  terms  as  before, 
a  pew  in  the  same  position  as  his  former  pew,  or  as  nearly 
conformable  to  that  position  as  can  be ;  but  this  upon  the 
condition  of  his  paying  the  cost  of  reconstructing  the  pew, 
or  such  cost,  after  deducting  a  proportion  of  the  insurance 
money,  if  the  vestry  shall  think  proper,  but  is  not  legally 
bound,  to  allow. 

A  resolution  of  the  vestry  recognizing  this  right,  and  for 
ascertaining  the  estimated  cost,  is  suggested. 

Mr.  Cambreling  and  myself  concur  in  the  conclusion,  that 
the  relations  of  the  parties  ought  to  be  settled  upon  equita- 
ble principles,  and  these  are  what  we  have  above  stated.  In 
my  individual  opinion,  the  Courts  would  declare  the  same  to 
be  matters  of  law. 

New  York,  Januaiy,  1867. 


Pews  and  Peiv-holders.  253 

A  i^aper  accompanied  this  opinion  in  which  all  the  above 
cited  authorities  were  noticed.  The  paper  proceeded  as 
follows  :  — 

"  We  may  now  examine  particularly  the  contract  in  this 
case  between  the  corporation  and  the  pew-holder.  The  lat- 
ter is  entitled  to  hold  the  pew  'so  long  as  the  church  edifice 
shall  endure.' " 

What  is  the  just  construction  of  this  stipulation? 

Certainly  an  injury  to  other  portions  of  the  edifice,  rep- 
arable out  of  adequate  funds  of  the  corporation,  would  not 
impair  his  right.  Equally  clear  is  it,  that  a  partial  destruc- 
tion whether  of  pews  or  other  portions,  which  the  insurance 
money  could  fully  repair,  would  not  have  such  an  effect. 
The  duty  so  to  apply  the  insurance  money  is  plain.  The 
pew-rent  paid  by  a  pew-holder  went  into  the  fund,  out  of 
which  the  premium  as  well  as  other  charges  were  paid. 

Suppose  a  destruction  by  fire  of  a  certain  number  of  pews 
and  no  insurance.  If  the  pew-holders  offered  to  reconstruct 
them,  it  is  impossible  that  the  trustees  could  legally  refuse 
permission,  exacting  of  course  conformity  in  materials,  etc. 
But  the  corporation  has  not  insured  the  pew  from  destruc- 
tion or  injury  in  favor  of  the  holder;  nor  is  there  any  stipu- 
lation to  that  effect.  Yet  the  trustees  would  be  bound  to 
replace  the  pew  for  the  corporate  religious  purposes.  The 
principle  then  of  a  total  demolition  of  the  edifice  termi- 
nating all  rights,  leads  to  the  conclusion,  that  a  partial 
destruction  modifies  them.  So  in  the  case  supposed,  the 
trustees  replacing  the  pews  destroyed,  would  have  a  right, 
and  as  we  think  in  equity  would  be  bound,  to  proffer  them 
to  the  holders  of  the  destroyed  pews,  they  paying  the  cost  of 
reparation. 

If  this  was  refused,  the  right  and  title  of  the  holder  would 
cease,  and  the  title  of  the  corporation  become  absolute. 

It  seems  to  us,  that  these  just  and  most  equitable  princi- 
ples may  fairly  be  elicited  from  the  authorities,  as  the  law  to 
govern  the  case  supposed. 

The  application  of  such  principles  in  the  present  instance 
is  varied  by  the  reception  of  the  insurance  money. 


254    Ecclesiastical  Law  in  the  State  of  New   YorJc. 

The  pew-holders  may,  with  much  apparent  equity,  ask, 
that  a  proportion  of  this  money  should  be  applied  to  the 
replacement  of  the  pews.  Thus,  the  whole  cost  is  to  be 
$164,000,  and  the  insurance  money  is  870,000.  The  sepa- 
rate cost  of  reconstructing  the  pews  should  be  ascertained. 
What  proportion  that  bears  to  the  whole  cost,  is  the  propor- 
tion of  the  insurance  money  to  be  allowed.  But  we  think 
that  in  strictness,  the  actual  cost  of  reparation  may  be  im- 
posed without  such  allowance  or  appropriation  of  part  of  the 
insurance  money. 

Each  holder  of  the  191  pews,  held  under  the  permanent 
leases,  will  thus  be  chargeable  with  a  definite  sum,  not  per- 
sonally, but  as  a  condition  of  his  right  to  retain  the  site  and 
reoccupy  the  new  pew  upon  it.  We  have  no  doubt  of  the 
power  of  the  vestry  to  allow  this,  amount  as  payment  in 
whole  or  in  part  of  the  contribution  of  a  pew-holder. 


CHAPTER  XXI. 

DISTURBANCE   OF   EELIGIOUS   WORSHIP. 

§  1.  (1.)  No  person  shall  willfully  disturb,  interrupt,  or 
disquiet  any  assemblage  of  people  met  for  religious  worship, 
by  profane  discourse,  by  rude  and  indecent  behavior,  or  by 
making  a  noise,  either  within  the  place  of  worship,  or  so 
near  to  it  as  to  disturb  the  order  and  solemnity  of  the 
meeting. 

(2.)  Nor  shall  any  person,  within  two  miles  of  the  place 
where  any  religious  society  shall  be  actually  assembled  for 
religious  worship,  expose  to  sale  or  gift,  any  ardent  or  dis- 
tilled liquors,  or  keep  open  any  huckster  shop  in  any  other 
place,  inn,  store,  or  grocery,  than  such  as  have  been  duly 
licensed,  and  in  which  such  person  shall  have  usually  re- 
sided or  carried  on  business. 

(3.)  Nor  shall  any  person  within  the  distance  aforesaid, 
promote,  aid,  or  be  engaged  in  any  racing  of  any  animals, 
or  in  any  gaming  of  any  description. 

(4.)  Nor  shall  any  person  obstruct  the  free  passage 
of  any  highway  to  any  place  of  public  worship,  within 
the  distance  aforesaid.  (1  R.  S.  674,  §  64.  Edmonds'  edi- 
tion.) 

§  2.  Wlioever  shall  violate  either  of  the  provisions  of  the 
foregoing  section  may  be  convicted  summarily  before  a 
justice  of  the  peace  of  the  county,  or  any  mayor,  recorder, 
alderman,  or  other  magistrate  of  any  city,  where  the  offense 
shall  be  committed,  and  on  such  conviction,  shall  forfeit  a 
sum  not  exceeding  twenty-five  dollars,  for  the  benefit  of  the 
poor  of  the  county.     (Ibid.  §  65.) 

§  3.  It  shall  be  the  duty  oV  all  sheriffs  and  their  deputies, 
coroners,  marshals,  constables,  and  other  peace  officers  who 
may  be  present  at  the  meeting  of  any  assembly  for  religious 


256    Ecclesiastical  Law  in  the  State  of  New  YorJc. 

worship,  which  shall  be  interrupted  or  disturbed  in  the 
manner  herein  prohibited,  to  apprehend  the  offender,  and 
take  him  before  some  justice  of  the  peace,  or  other  magis- 
trate authorized  to  convict  as  aforesaid,  to  be  proceeded 
against  according  to  law.     (Ibid.  §  66.) 

§  4.  All  judges,  mayors,  recorders,  aldermen,  and  justices 
of  the  peace,  within  their  respective  jurisdictions,  upon 
their  own  view  of  any  person  offending  against  the  provis- 
ions of  this  article,  may  order  the  offender  into  the  custody 
of  any  officer  in  the  preceding  section  named,  or  of  any 
official  member  of  the  church  or  society  so  assembled  and 
disturbed,  for  safe  keeping,  until  he  shall  be  let  to  bail,  or  a 
trial  for  such  offense  be  had.     (Ibid.  §  67.) 

§  5.  If  any  person  convicted  of  any  of  the  offenses  herein 
prohibited  shall  not  immediately  pay  the  penalty  incurred, 
with  the  costs  of  the  conviction,  or  give  security  to  the  sat- 
isfaction of  the  officer  before  whom  the  conviction  shall  be 
had,  for  the  payment  of  the  said  penalty  and  costs,  within 
twenty  days  thereafter,  he  shall  be  committed  by  warrant  to 
the  common  jail  of  the  county,  until  the  same  be  paid,  or  for 
such  terms  not  exceeding  thirty  days,  as  shall  be  specified 
in  the  warrant.     (Ibid.  §  68.) 

§  6.  Whenever  complaint  shall  be  made  to  any  justice 
of  the  peace,  mayor,  recorder,  or  alderman,  of  a  violation  of 
either  of  the  provisions  contained  in  the  last  three  articles, 
relative  to  profane  swearing  (the  6th),  the  disturbance  of  re- 
ligious meetings,  or  the  observance  of  Sunday  (the  8th),  or 
when  any  such  violations  shall  happen  in  the  presence  of 
such  officer,  he  shall  cause  the  offender  to  be  brought  before 
him,  and  shall  proceed  summarily  to  inquire  into  the  tacts  ; 
and  if  the  person  charged,  be  found  guilty,  a  record  of  his 
conviction  shall  be  made  and  signed  by  such  officer,  before 
issuing  any  process  to  enforce  the  same ;  which  conviction 
shall  be  final,  and  shall  not  be  reexamined  upon  the  merits 
in  any  court.     (Ibid.  p.  676,  §  73.) 

§  7.  No  prosecution  shall  be  maintained  for  any  of  the 
violations  specified  in  the  preceding  section,  unless  the  same 
be  instituted  by  the  actual  issuing  of  process  to  apprehend 


Disturbance  of  Religious   Worship.  257 

the  offender,  or  by  his  actual  appearance  to  answer  the 
complaint  within  twenty  clays  next  after  the  offense  com- 
mitted.    (Ibid.  p.  677,  §  74. 

§  8.  Upon  a  conviction  being  had  for  any  of  the  offenses 
in  the  last  three  articles  specified,  where  no  other  special 
provision  is  made  for  the  collection  of  the  penalties  incnrred, 
the  magistrate,  before  whom  the  same  is  made,  shall  issue  an 
execution  to  any  constable  of  the  county,  commanding  him 
to  levy  the  said  penalties  and  the  costs  of  the  conviction,  by 
distress  and  sale  of  the  goods  and  chattels  of  the  offender ; 
and  in  case  sufficient  goods  and  chattels  cannot  be  found, 
then  to  commit  such  offender  to  the  common  jail  of  the 
county,  for  such  time  as  shall  be  specified  in  the  said 
execution,  not  less  than  one  day,  nor  more  than  three  days. 
(Ibid.  §  75.) 

§  9.  Within  thirty  days  after  any  such  conviction  shall 
be  had,  the  magistrate  making  the  same,  shall  cause  to 
be  filed  in  the  office  of  the  clerk  of  the  county,  a  certificate 
of  such  conviction,  briefly  stating  the  offense  charged,  the 
conviction  and  judgment  thereon,  and  if  any  fine  has 
been  collected,  the  amount  thereof,  and  to  whom  paid. 
(Ibid.  §  76.) 

§  10.  In  all  prosecutions  for  any  of  the  offenses  specified 
in  the  last  three  articles,  the  like  fees  shall  be  allowed  and 
taken,  as  in  civil  suits  before  justices  of  the  peace,  which 
shall  in  no  case  exceed  five  dollars,  and  be  paid  by  the  party 
offending,  over  and  above  the  penalties  incurred  ;  but  in 
case  of  the  imprisonment  of  the  offender,  no  charges  or 
fees  shall  be  allowed.     (Ibid.  §  77.) 

In  The  First  Baptist  Church  v.  The  Schenectady,  etc., 
Railroad  Company  (5  Barbour's  Rep.  79),  it  was  held,  by 
Harris,  Watson,  and  Parker,  Justices,  at  General  Term,  that 
an  action  would  lie  on  behalf  of  a  religious  corporation 
against  a  railroad  company,  for  running  their  cars,  blowing 
off  steam,  ringing  bells,  and  making  other  noises  in  the 
vicinity  of  a  church,  during  public  worship  on  the  Sabbath, 
by  which  the  congregation  was  so  annoyed  as  to  depreciate 
the  value  of  the  house  of  worship.     The  depreciation  of  the 

17 


258    Ecclesiastical  Law  in  the  State  of  New   York. 

property  for  the  purposes  to  which  the  owner  had  devoted 
it,  was  enough. 

But  in  The  Trustees  of  the  First  Baptist  Church,  etc.  v. 
The  Utica,  etc.  Raih-oad  Co.  (6  Barbour's  Rep.  313),  before 
Justices  Cady,  Willard,  and  Hand,  the  reverse  was  decided. 
That  the  corporation  coukl  not  sustain  such  an  action,  the 
damages  being  too  remote.  If  they  coukl  not  recover  on 
the  ground  of  injury  to  property,  they  could  not  at  all.  The 
molestation  was  to  the  worshippers.  What  was  authorized 
by  the  leg'islature  could  not  be  a  nuisance.  Even  if  it  were 
a  public  nuisance,  an  individual  attendant  could  not  sue. 
He  received  no  special  damage. 

In  Owen  v.  Hinman  (1  Watts  &  Serg.  548),  the  action 
was  by  a  member  of  a  Presbyterian  Church,  complaining  of 
the  defendant  interrupting  his  religious  worship  by  loud 
singing  and  talking.  The  Court  held  such  an  action  would 
not  lie.  The  plaintiff  claimed  no  property  on  the  building 
or  a  pew  in  it.  There  is  no  damage  to  his  property,  health, 
reputation,  or  person.  The  injury  complained  of,  if  against 
the  will  of  the  officers  of  the  church,  is  in  the  nature  of  a 
nuisance  or  injury  to  them,  and  it  is  for  them  to  seek  re- 
dress. It  is  well  known  that  the  property  of  our  churches 
and  meeting-houses,  and  the  superintendence  of  the  con- 
gregations, and  the  right  to  control  and  regulate  them,  and 
to  prevent  improper  intrusion  or  interference,  is  vested  uni- 
formly in  some  corporation  or  trustees,  in  whom  is  placed 
the  power  to  enforce  the  will  of  the  owners. 

Under  the  clause  of  the  statute  marked  ante,  §  4,  it  was 
decided  in  Farrell  v.  Warren  (3  Wendell,  253),  that  a  justice 
of  the  peace,  etc.,  could,  upon  his  own  personal  view  of  an 
offense  committed  against  the  act,  put  the  offender  in  cus- 
tody of  a  constable,  without  issuing-  a  warrant. 

In  proceeding  under  the  statute  against  a  disturber  of  a 
religious  meeting,  it  is  not  necessary  that  process  should 
actually  issue.  The  main  purpose  of  the  7th  section  was 
to  limit  the  time  within  which  proceedings  must  be  com- 
menced; but  parties  may  voluntarily,  within  that  time,  as  in 


Disturbance  of  Religious   Worship.  259 

other  cases,  appear  and  join  issue,  or  confess  the  complaint. 
(Foster  v.  Smith,  10  Wendell,  377.) 

A  person  arrested  as  an  oftender  under  the  act  by  warrant, 
must  be  carried  before  the  magistrate  who  issued  such  war- 
rant.    (The  People  v.  Fuller,  17  Wendell,  211.) 

The  justice  cannot,  on  the  return  of  process  personally 
served,  proceed  to  hear  the  proofs,  and  convict  the  party, 
without  a  personal  appearance.  He  must  be  brought  before 
him.     (Bigelow  v.  Stearns,  19  Johns.  Rep.  39.) 

The  following  points  were  established  in  the  case  of  Wall 
V.  Lee,  34  N.  Y.  Rep.  141,  Court  of  Appeals. 

A  person  disturbing  a  religious  meeting  during  services, 
may  be  removed  from  the  building  by  the  application  of 
force  sufficient  to  effect  that  purpose. 

To  justify  such  a  removal,  and  the  force  necessary  to  effect 
it,  it  is  not  requisite  that  the  disturbance  should  be  willfully 
made. 

If  the  proceeding  was  under  the  statute  against  a  person 
as  a  disturber,  then  the  willfulness  of  the  act  must  be  stated 
and  proven. 

But  in  every  congregation  assembled  for  religious  pur- 
poses, there  must  necessarily  exist  the  power  to  preserve 
order  and  to  expel  any  one  guilty  of  a  disturbance,  and 
who  should  persist  in  it  so  that  worship  could  not  be  con- 
ducted in  an  orderly  and  proper  manner. 

In  Roman  Catholic  churches  the  appropriate  person  to 
preserve  order  is  the  priest.  He  can  call  upon  others  to  aid 
him.  The  defendant  was  such  a  priest,  and  had  tried  to  re- 
move the  plaintiff. 


CHAPTER  XXII. 

THE    DISMISSAL   OF   MINISTEES. 

The  important  point  of  the  dismissal  of  ministers  is  much 
influenced  by  the  special  regulations  of  different  denomina- 
tions. These  will  be  noticed  to  some  extent  in  considering 
the  subject. 

We  should,  however,  first  recollect  the  decided  assertion 
of  the  permanence  of  the  relation  of  rector  and  parish 
found  in  the  English  law.  The  tie  cannot  be  broken  ex- 
cept by  judicial  sentence  or  resignation  to,  and  acceptance 
by,  the  Ordinary. ^  It  is  stated  by  Bishop  Gibson  that  the 
Ordinary  is  not  bound  to  accept,  but  is  the  judge  of  the 
motives  for  the  application,  and  that  there  is  no  remedy  if 
he  will  not  accept,  more  than  if  he  will  not  ordain.^ 

The  eloquent  language  of  Lord  Stowell  ^  as  to  the  relation 
of  husband  and  wife,  may  well  be  applied  here.  "  When  peo- 
ple understand  that  they  must  live  together,  except  for  a  few 
reasons  known  to  the  law,  they  learn  to  soften,  by  mutual 
accommodation,  that  yoke  which  they  know  they  cannot 
shake  off.  They  become  good  husbands  and  good  wives, 
from  the  necessity  of  remaining  husbands  and  wives,  for 
necessity  is  a  powerful  master  in  teaching  us  to  bear  the 
duties  it  imposes."  See  also  a  striking  passage  in  Hume's 
"  Essay  on  Polygamy  and  Divorce,"  Essay  19. 

The  following  are  the  strong  expressions  of  the  Rev.  Mr. 
Thatcher  of  Massachusetts.     No  description  of  men  under 

1  Burns'  Ecclesiastical  Law,  vol.  iii.  p.  540,  etc. 

2  Codex,  p.  822.  Miirchioncss  of  Kockinoham  v.  Griffith,  3  Burrows,  p.  543. 
As  lonff  i\<xo  as  the  year  740,  it  was  declared  that  priests  he  neither  constituted  to 
any  church,  nor  ejected  from  it,  without  the  authority  and  consent  of  the  Bishop. 
Egghrig'ht's  Exceptions,  Johnson's  Laws,  etc.,  vol.  i.  p.  158. 

8  Evans  v.  Evans,  1  Haggard's  Cons.  Kep.  36. 


The  Dismissal  of  Ministers.  20 1 

the  government  of  Jews,  Turks,  or  Pag-ans,  were  so  badly 
off  as  the  clergy  of  New  England,  on  the  supposition  that 
the  power  of  dismission  lies  with  the  people.^ 

§  1.  The  Supreme  Court  of  Massachusetts  thus  declares 
the  law  of  that  State :  "  It  has  been  the  uniform  opinion  of 
all  the  judges  of  the  higher  courts,  that  where  no  tenure 
was  annexed  to  the  office  of  a  minister  by  the  terms  of  set- 
tlement, he  did  not  hold  his  office  at  will,  but  for  life,  de- 
terminable for  some  good  and  sufficient  cause,  or  by  the 
consent  of  both  parties.^ 

But  the  Courts  have  sanctioned  such  special  contracts, 
and  also  modes  of  effecting  a  dissolution  plainly  agreed 
upon.  Where  no  special  contract  existed,  the  Cambridge 
platform  had  prescribed  that  there  must  be  the  sanction 
of  a  council,  and  the  Courts  have  recognized  this  rule  of 
the  Church."^  The  nature  of  these  councils  will  be  found 
in  Bucks'  "  Mass.  Ecc.  Law,"  p.  211,  etc.  I  refer  to  a  few 
authorities  as  to  the  office  of  these  councils. 

They  are  distinguished  as  ex  parte  and  mutual  councils. 
It  is  only  when  a  mutual  council  has  been  proffered  and  de- 
clined, that  an  ex  parte  council  can  be  called.  Such  refusal 
must  be  positive  and  unconditional.  (Thompson  v.  Relio- 
both,  7  Pick.  163 ;  Whitmore  v.  Fourth  Cong.  Society,  2 
Gray,  306  ;  Burr  v.  Sandwich,  9  Mass.  277.) 

I  judge  that  the  earlier  cases  held,  that  the  conclusion  of 
an  ex  parte  council  duly  convened,  if  accepted  by  one  party, 
bound  the  other  in  the  civil  courts,  much  more  that  of  a 
mutual  council.  But  the  later  authorities  appear  to  estab- 
lish these  points. 

That  the  determination  of  a  council  is  not  a  judgment, 
unless  accepted  by  both  parties,  and  until  this  has  taken 
place,  the  Supreme  Court  has  no  power  to  enforce  it  It  is 
said  in  one  case,  that  there  was  neither  common  law  nor 
equity  power  to  enable  it  to  do  so,  as  the  parish  had  not,  in 
the  opinion  of  the  Court,  upon  the  evidence,  accepted  the 

1  Quoted  Bucks'  Ecclesiastical  Law,  p.  90. 
-  Avervi'.  Tyringham,  3  Mass.  Rep.  160. 
3  Cochran  v.  Camden,  15  Mass.  Eep.  304  ;  Sheldon  v.  Easton,  24  Pick.  286. 


262  Ecclesiastical  Law  in  the  State  of  New   York. 

result.  An  action,  therefore,  for  the  recovery  of  a  sum  ad- 
judged by  the  council  to  be  paid  to  the  minister,  could  not 
be  supported.     (Stearns  v.  Bedford,  21  Pick.  214.) 

Again,  the  Court  looks  behind  the  adjudication.  It  must 
appear:  (1.)  That  the  cause  for  calling  the  council  was  suf- 
ficient. (2.)  That  the  members  were  properly  selected.  (3.) 
That  they  proceeded  impartially,  and  with  due  respect  to  the 
rights  of  all  parties.  (4.)  That  their  conclusion,  besides 
being  formal  and  explicit,  is  based  on  grounds  that  will 
support  it;  and  finally,  that  the  result  of  a  council,  even 
thus  unexceptionable,  is  only  irrimd  facie  evidence,  and  de- 
rives its  binding  force  mainly  from  the  consent  of  parties. 
(Stearns  v.  Bradford,  and  Mr.  Bucks'  Summary,  Mass.  Ecc. 
Law,  p.  244.) 

§  2.  Reformed  Dutch  Church.  By  section  18,  article  1, 
chapter  1,  of  the  Constitution  of  the  Reformed  Dutch 
Church  of  North  America,  "  for  the  reg'ular  dismission  of  a 
minister,  who  has  received  and  accepted  a  call  from  another 
place,"  it  is  required,  "  that  a  neighboring  minister  of  the 
same  Classis  to  which  the  congregation  belongs,  be  invited 
to  be  present  and  superintend  the  dismission  of  the  minister 
from  his  congregation,  countersign  the  instrument  of  dis- 
mission, and  to  deliver  the  same,  with  a  report  upon  the 
subject,  to  the  Classis,  which  report  and  document  shall 
serve  as  a  basis  upon  which  the  final  dismission  and  certifi- 
cate of  the  Classis  shall  be  founded. 

Section  10  of  article  3  is  identically  the  same  as  the  above, 
omitting  the  words  "  who  has  received  and  accepted  a  call 
from  another  place." 

The  form,  Appendix  No.  4,  states  that  the  undersigned  was 

present  at  a  meeting  of  the  Consistory  of ,  on,  etc., 

when  it  was  resolved,  that  an  application  be  made  to  the 

Classis  of for  a  dissolution  of  the  pastoral  connection 

between  the  Reverend ,  and  the  said  church  ;  and  that 

the  said  Reverend declared  his  concurrence  in  such 

application. 

I  doubt,  therefore,  whether  these  provisions  cover  the  case 
of  a  hostile  dismission  by  the  congregation  with  the  sanction 


The  Dismissal  of  Ministers.  2G3 

of  Classis.     Amoug  the  powers  enumerated  as  belonging  to 
Classis  is  that  of  dismissing  ministers  when  called  elsewhere. 

The  cases  provided  for,  seem  to  be  those  of  a  voluntary 
resignation  upon  a  call  elsewhere,  or  without  it,  sanctioned 
and  recorded  by  an  ecclesiastical  authority. 

When  any  minister  shall  be  duly  convicted  of  any  offense 
which  implicates  the  purity  of  his  clerical  character,  and 
shall,  in  consequence  of  such  conviction,  be  suspended  from 
his  office,  and  the  conviction  and  suspension  shall  be  sus- 
tained on  a  final  appeal,  his  pastoral  connection  with  the 
congregation  in  which  he  was  settled,  shall  (if  the  Consis- 
tory so  elect),  be  ipso  facto  dissolved.     (Art.  II.  §  14.) 

The  case  of  The  Reformed  Dutch  Church  of  Albany  v. 
Bradford  (8  Cowen's  Rep.  457),  is  an  instructive  decision 
upon  this,  as  upon  several  other  points. 

The  call  of  Dr.  Bradford  under  the  corporate  seal,  was 
made  in  1805,  and  stipulated  that  the  church  would  pay  him 
the  sum  of  fifteen  hundred  dollars  yearly,  and  every  year, 
*'  so  long  as  you  continue  our  minister  in  the  said  church, 
and  remain  unmarried,"  and  upon  his  marriage,  to  pay  the 
further  sum  of  8250  annually.  In  1813  the  salary  was  fixed 
at  $2000.  It  had  been  paid  up  to  the  2d  of  December, 
1820,  but  not  afterwards.     The  action  was  for  the  arrears. 

Proceedings  had  been  instituted  by  the  elders  and  deacons 
of  the  Consistory  of  the  church,  before  the  Classis  for  an 
inquiry  into  rumors  affecting  the  minister's  character.  The 
Classis  had  met.  The  plaintiff,  upon  notice,  appeared  before 
them,  took  olyections  to  the  regularity  of  the  proceedings, 
which  were  overruled,  and  an  investigation  took  place  as  to 
whether  the  reports  were  of  such  continuance  and  extent,  as 
to  constitute  what  is  called  common  fame.  The  Classis 
determined  that  they  were  so.  The  Consistory  was  then 
directed  to  make  specfic  charges  against  the  plaintiff,  with 
the  names  of  the  witnesses.  This  was  done,  and  the  charges 
openly  read  to  the  plaintiff,  who  put  in  a  general  denial  of 
their  truth,  and  asked  for  time  to  prepare  his  defense.  This 
was  granted  with  liberty  to  the  Consistory  to  furnish  other 
Bpecificatious  and  names  of  witnesses,  serving  a  copy  four- 


264    Ecclesiastical  Laio  in  the  State  of  New   York. 

teen  days  before  the  next  meeting  of  Classis  appointed  for 
hearing  the  cause. 

After  a  full  hearing,  the  Classis  resolved,  that  the  plain- 
tiff had  been  guilty  in  repeated  instances  of  intoxication. 
That  he  be,  and  he  is,  hereby  suspended  from  the  office  of 
the  ministry,  until  he  shall  give  Classis  evidence  of  his  re- 
pentance and  reformation.  This  was  on  the  27th  of  Novem- 
ber, 1820. 

An  appeal  was  taken  before  February,  1821,  to  the  partic- 
ular Synod,  which  rejected  it  on  the  16th  of  May,  1821. 
An  appeal  to  the  General  Synod  was  also  disallowed. 

On  the  22d  of  February,  1821,  Classis  resolved,  that  the 
pastoral  connection  between  the  parties  be  dissolved.  Au 
appeal  was  taken  from  this  decision,  ultimately  to  the  Gen- 
eral Synod.  The  appeal  was  sustained,  on  the  ground  that 
Classis  could  not  proceed  to  a  dissolution  pending  an  appeal 
from  the  sentence  of  suspension. 

But  at  the  same  time  (14th  June,  1821),  the  General 
Synod  advised  Classis  to  proceed  to  such  dissolution,  the 
appeal  from  the  judgment  of  suspension  being  disallowed. 
This  was  done  by  a  formal  act  of  the  26tli  of  June,  1821. 

It  was  decided  in  the  Supreme  Court  that  the  minister's 
salary,  for  the  period  between  the  sentence  of  suspension  and 
that  of  the  dissolution  of  the  pastoral  connection,  could  be 
recovered.  The  contract  was  to  pay  him  so  long  as  he 
remained  their  minister,  not  so  long  as  he  performed  the 
duties.     Savage,  Ch.  J.  dissented. 

The  Court  of  Errors  held,  that  the  plaintiff  below  was 
not  entitled  to  recover  his  salary  for  the  period  between  his 
suspension  and  final  dismission.  The  contract  was  to  be 
considered  as  implying  the  actual  continuous  discharge  of 
pastoral  duties.  If  the  inability  arose  from  his  own  fault, 
he  could  not  support  his  claim. 

Many  members  of  the  Court,  and  of  high  authority,  took 
a  different  view. 

§  3.  The  Presbyterian  Church.  By  the  regulations  of 
the  Presbyterian  Church  (Form  of  Government,  chaps,  xv. 
xvi.),  there  can  be  no  removal  of  a  pastor  from  one  church 


The  Disimssal  of  Ministers.  265 

to  another,  nor  shall  he  receive  any  call  for  that  purpose, 
but  by  permission  of  the  Presbytery.  The  mode  of  pro- 
curing this  is  pointed  out. 

"  And  when  a  minister  shall  labor  nnder  such  grievances 
in  his  congregation  as  that  he  shall  desire  leave  to  resign 
his  pastoral  charge,  the  Presbytery  shall  cite  the  congrega- 
tion to  appear  by  commissioners,  to  show  cause  wdiy  the  res- 
ignation should  not  be  accepted."  That  body  passes  npon 
the  case.  "  And  if  any  congregation  shall  desire  to  be  re- 
leased from  their  pastor,  a  similar  process,  mutatis  mutamlis, 
shall  be  observed." 

A  Presbytery  consists  of  all  the  ministers,  and  one  ruling 
elder  from  each  congregation  w  ithin  a  certain  district. 

By  chapter  11,  section  14  (Forms  of  Process),  as  soon  as 
a  minister  is  deposed,  his  congregation  shall  be  declared 
vacant. 

Is  this  to  be  interpreted  as  requiring  some  further  official 
declarative  act  ?  If  so,  by  what  body  ?  Perhaps  in  the  sen- 
tence of  deposition,  a  clause  to  that  effect  could  be  inserted. 
In  the  Dutch  Reformed  Church,  as  we  have  seen,  dismission 
is  a  formal  official  act  consequent  upon  deposition.  [Ante,  §  2.) 

§  4.  Protedimt  Episcopal  Chuvch.  The  first  regulation  of 
the  Protestant  Episcopal  Church  upon  this  subject,  was  the 
canon  of  1804.^  Whenever  any  minister  has  been  regu- 
larly inducted  or  settled  in  a  parish  or  church,  he  shall  not 
be  dismissed  without  the  concurrence  of  the  ecclesiastical 
authority  of  the  diocese  or  State ;  and  in  case  of  such  dis- 
mission w^ithout  his  concurrence,  the  vestry  or  congregation 
of  such  parish  or  church  shall  have  no  right  to  a  represen- 
tation in  the  convention  of  the  State,  until  they  have  made 
such  satisfaction  as  the  convention  may  require. 

Nor  shall  any  minister  leave  his  congregation  against 
their  will,  without  the  concurrence  of  the  ecclesiastical  au- 
thority aforesaid ;  and  if  he  shall  leave  them  without  such 
concurrence,  he  shall  not  be  allowed  to  take  his  seat  in  any 
convention  of  the  church,  or  be  eligible  unto  any  church  or 
parish  within  the  States  which  have  acceded  to  the  cousti- 

1  Hawks'  Constitution  and  Canons,  p.  305. 


266     Ecclesiastical  Latv  in  the  State  of  Neio  York. 

tution  of  this  church,  until  he  shall  make  such  satisfaction 
as  the  ecclesiastical  authority  of  the  diocese  or  State  may- 
require." 

The  change  made  in  1808  was  by  substituting  the  word 
mstihded  for  "  inducted,"  and  adding  the  following  clause : 

"  This  canon  shall  not  he  obligatory  upon  those  States  or 
dioceses  with  whose  usages,  laws,  or  charters  it  interferes." 

The  canon  of  1832  (Canon  33),  was  the  same. 

In  the  Convention  of  1865,  it  was  amended,  so  as  to  read 
as  follows  :  — 

"  III  case  a  minister,  who  has  been  regularly  instituted  or 
settled  in  a  parish  or  church,  be  dismissed  by  such  parish 
or  church  without  the  concurrence  of  the  ecclesiastical  au- 
thority of  the  diocese,  the  vestry  or  congregation  of  such 
parish  or  church  shall  have  no  right  to  a  representation  in 
the  convention  of  the  diocese,  until  they  shall  have  made 
such  satisfaction  as  the  convention  may  require;  but  the 
minister  thus  dismissed  shall  retain  his  right  to  a  seat  in 
the  convention,  subject  to  the  approval  of  the  ecclesiastical 
authority  of  the  diocese. 

"•  And  no  minister  shall  leave  his  congregation  against 
their  will,  without  the  concurrence  of  the  ecclesiastical  au- 
thority aforesaid ;  and  if  he  shall  leave  them  without  such 
concurrence,  he  shall  not  be  allowed  to  take  his  seat  in  any 
convention  of  this  church,  or  be  eligible  into  any  church  or 
parish,  until  he  shall  have  made  such  satisfaction  as  the 
ecclesiastical  authority  of  the  diocese  may  require  ;  but  the 
vestry  or  church  shall  not  thereby  be  deprived  of  its  right 
to  a  representation  in  the  convention  of  the  diocese. 

"  This  canon  shall  not  be  obligatory  in  those  dioceses  with 
whose  canons,  laws,  or  charters  it  may  interfere." 

There  are  some  points  of  importance  arising  under  these 
provisions. 

The  office  of  institution  is,  in  the  judgment  of  the  author, 
not  necessary  to  entitle  the  minister  to  the  rights  which  he 
possesses  by  virtue  of  his  call  and  admission  as  rector.^ 
That  office  contains  this  clause :  "  And  in  case  of  any 

1  Law  of  the  Church,  p.  291. 


The  Dismissal  of  3Iinisters.  2G7 

difference  between  you  and  your  congregation  as  to  a  sepa- 
ration and  dissolution  of  all  sacerdotal  connection  between 
you  and  them,  we,  your  Bishop,  with  the  advice  of  our 
presbyters,  are  to  be  the  ultimate  arbiter  and  judge." 

In  Hoffman's  "  Law  of  the  Church,"  p.  334,  is  a  statement 
of  a  case  which  occurred  in  184S,  in  New  York.  The  stand- 
ing committee  (the  Bishop  being  suspended),  upon  an  a])pli- 
cation  of  a  vestry,  required  a  statement  in  writing  of  the 
reasons  for  seeking  a  dissolution,  and  a  request  for  concur- 
rence, holding  that  an  absolute  dismission  and  then  a  re- 
quest was  premature.  This  being  laid  before  them,  and 
proof  of  reasonable  notice  of  its  presentation  being  made, 
and  the  minister  not  appearing,  it  was  resolved,  that  the 
concurrence  of  the  committee  as  the  ecclesiastical  authority 
of  the  diocese  be  given  to  the  dismission  of  the  Rev.  Mr. 
,  from  the  church  of . 

Two  cases  in  Connecticut  are  also  noticed,  in  which  it  was 
decided  that  a  formal  resignation  accepted  by  the  congrega- 
tion, should  receive  such  approval.  The  acceptance  was  by 
the  body  of  parishioners,  at  a  reg'ular  meeting. 

From  this  review  of  our  Church  legislation,  it  follows  — 

That  undoubtedly,  the  power  to  dissolve  the  connection 
between  minister  and  congregation,  resides  in  the  cong-re- 
gation  (or  in  the  vcstnj),  with  the  sanction  of  the  ecclesias- 
tical authority. 

And  I  cannot  question,  that  such  a  dissolution,  regularly 
made,  will  discharge  all  obligations  and  contracts  between 
the  parties.     See  ^Jost,  chapter  23. 

But  what  are  the  consequences  if  the  dismissal  is  without 
such  concnrrence  ? 

The  alteration  of  the  canon  in  1865,  was  in  consequence 
of  a  resolution  instructing  the  committee  on  Canons  to  re- 
port such  an  amendment  as  will  remove  the  ambiguity  which 
exists  as  to  the  effect  of  a  dismissal  by  a  parish  of  its  min- 
ister, without  the  consent  of  the  ecclesiastical  authority. 
(Reporter,  p.  57.)  It  was  stated,  that  cases  had  arisen  in 
which  the  question  was.  Whether  after  such  dismissal  and 
exclusion  from  convention,  the  connection  absolutely  ceased  ? 
That  eminent  counsel  had  differed  upon  the  point. 


268    Ecclesiastical  Laiv  in  the  State  of  Neiu   York. 

Au  argumeut  upon  that  question  (before  the  amendment) 
may  he  thus  stated.  The  canon  forbade  the  dissolution  with- 
out consent,  in  express  terms,  and  in  au  independent  propo- 
sition. Then  a  penalty  was  declared,  namely,  exclusion  from 
a  place  in  convention,  of  the  cong-regation  acting  without  the 
concurrence.  Was  this  —  could  this  be  anything  more  than 
the  ecclesiastical  punishment  for  the  disobedience  to  the 
rule  ?  The  General  Convention  either  could  not,  or  deemed 
it  unwise  to  go  further,  but  left  the  eifect  of  the  act  upon 
the  contracts  and  obligations  of  a  civil  nature,  for  decision 
by  the  civil  courts.     (Hawks'  Const,  and  Canons,  309,  310.) 

To  the  canon  of  1808,  relating  to  Institution,  was  added 
the  following  :  But  it  is  to  be  understood  that  this  Church 
designs  not  to  express  any  approbation  of  any  laws  or 
usages  which  make  the  station  of  a  minister  dependent  on 
anything  else  than  his  own  soundness  in  the  faith,  or  worthy 
conduct.^ 

Again  in  the  Institution  Office,  after  recognizing  a  separa- 
tion by  mutual  consent,  we  find  this  language  :  "  And  in 
case  of  any  difference  between  you  and  your  congregation 
as  to  a  separation  and  dissolution  of  all  pastoral  connection 
between  you  and  them,  we,  your  Bishop,  with  the  advice  of 
our  Presbyters,  are  to  be  the  ultimate  arbiter  and  judge." 

In  Young  v.  Ransom  (31  Barbour's  N.  Y.  Rep.  49),  Mr. 
Justice  Emniot  expressed  the  opinion,  that  the  concurrence 
of  the  ecclesiastical  authority  was  essential. 

But  it  must  be  admitted,  that  the  amendment  of  1865 
appears  to  recognize  the  power  to  dismiss,  if  the  congrega- 
tion are  ready  to  submit  to  the  penalty. 

It  will  deserve  great  consideration  whether  this  can  be  ac- 
cepted as  law  (in  the  civil  courts  at  least),  when  the  pastoral 
relation  was  formed  before  the  amendment  of  1865. 

In  a  case  in  Michigan  in  1866,  after  the  amen<lment,  some 
questions  of  moment  arose.  The  assent  of  the  authority 
had  been  given.  Hence  the  amendment  did  not  influence 
the  case  .2 

1  Hawks'  Constitution  and  Canons,  p.  276. 

2  Journal  of  the  Convention,  1866.  Pamplilet  by  a  former  member  of  the 
vestry.     Detroit,  1867. 


The  Dismissal  of  Ilinisiers.  2G9 

There  the  vestry  after  requesting  a  resignation  by  the 
rector,  which  was  declined,  passed  a  resokition  of  dismis- 
sion. The  Bishop,  after  consulting  the  standing  commit- 
tee, approved  of  it.  In  the  pamphlet  referred  to,  a  com- 
mittee of  the  congregation  state  that  a  large  majority  of 
the  pew-holders  expressed  their  unaltered  confidence  in  the 
rector.  It  is  said  that  although  only  pew-holders  and  com- 
municants were  solicited,  two  hundred  and  fifty-seven  names 
were  attached  to  a  paper  containing  a  strong  approbation 
of  his  conduct. 

It  deserves  consideration  whether  the  true  sense  of  the 
present  canon  is  not,  that  the  act  of  dismission  must  he  the 
act  of  the  congregation  or  parishioners,  not  of  the  vestry. 

In  the  case  of  the  Rector  of  St.  Peter's  Church,  Salem, 
Massachusetts,  in  April,  1865,  the  congregation,  at  the  an- 
nual Easter  meeting,  adopted  by  a  vote  of  37  to  9,  a  resolu- 
tion that  the  pastoral  relation  between  them  and  the  rector 
be  dissolved,  and  applied  to  the  Bishop  for  his  concurrence. 
Any  attempt  to  cast  reproach  upon  the  rector  was  disavowed, 
and  the  Bishop  stated  it  would  be  an  act  of  great  injustice 
to  concur. 

The  language  of  the  canon  as  amended  in  1865,  gives 
strength  to  the  above  suggestion :  "  In  case  a  minister 
settled  in  a  parish  or  church,  be  dismissed  by  such  parish 
or  church,  without,  etc."  The  language  before  was,  "A 
minister  settled,  etc.,  shall  not  be  dismissed,  without,  etc." 
Hence  the  vestry  as  a  representative  of  the  congregation, 
may  have  been  treated  as  competent  to  dismiss.  But  the 
phraseology  now  used  seems  to  imply  that  the  power  is  in 
the  parish  or  church,  parishioners  or  members,  entitled  to 
vote. 

§  5.  Proceeditujs.  Another  point  appears  to  the  author  to 
be  quite  clear.  When  the  sanction  of  the  ecclesiastical  au- 
thority is  sought,  a  duty  is  imposed,  as  well  as  a  power  con- 
ferred. It  cannot  concur  upon  any  ex  parte  statements,  or 
without  an  examination.  The  right  to  be  heard  is  a  com- 
mon law  right,  and  must  be  observed,  before  any  penalty  of 
any  description   can   be   lawfully  inflicted.     If  the   conse- 


270    Ecclesiastical  Law  in  the  State  of  New  York. 

quence  of  a  dismission  with  concurrence  is  to  dissolve,  and 
disci] arge  the  civil  relations  and  contracts  of  the  parties,  it 
can  only  be  so  permitted  when  the  essential  rules  of  the  law 
are  observed.  A  competent  authority  to  hear  and  decide  — 
a  proper  reasonable  notice  of  the  matters  objected  to  —  an 
opportunity  to  meet  and  reply  to  them,  are  fundamental. 

The  opinion  of  that  sound  lawyer  and  canonist,  Mr.  G. 
M.  Wharton,  upon  the  case  in  Michigan,  was,  that  a  vestry 
had  no  right  to  dismiss  a  rector  without  accusation  or  trial. 
The  legislation  of  1865  prevents  the  dismissal  of  a  minister 
by  a  vestry  with  the  assent  of  the  Bishop,  from  being  unca- 
nonical,  and  relieves  the  parties  from  the  penalties  of  the 
canon.  I  do  not  think,  however,  that  it  makes  good  a  dis- 
missal without  trial,  or  that  it  dissolves  the  contract  between 
him  and  the  parish.  Such  a  result  would  be  a  violation  of 
general  principles,  and,  I  think,  the  law  of  1865  should 
be  construed  in  subordination  to  these.^  This  was  given  iu 
December,  1866. 

In  the  case  before  the  standing  committee  of  New  York, 
in  1848,  before  noticed,  a  written  statement  of  the  grounds 
of  the  application  was  required,  a  copy  served  upon  the 
minister  with  notice  of  the  day  of  presenting  it,  and  action 
was  had  upon  his  neglect  to  appear. 

The  subject  was  brought  before  the  Convention  of  Ohio 
by  the  Bishop  in  1865.  He  apprised  the  Convention  that  a 
particular  vestry  had  notified  him  of  the  dismissal  of  their 
regularly  settled  minister,  and  without  the  consent  of  the 
ecclesiastical  authority. 

The  committee  to  which  the  communication  was  referred, 
including  distinguished  lawyers,  reported  that  they  were 
clearly  of  opinion,  that  the  action  of  the  vestry  was  a  viola- 
tion (unintentional  in  their  judgment)  of  Canon  4,  title  11, 
of  the  General  Convention.  They  had  received  communi- 
cations which  led  to  the  belief  of  an  accommodation  being 
effected. 

But  another  and  very  important  and  valuable  action  of 
this  Convention  was  had. 

1  Pamphlet  before  quoted.  At  page  28  is  a  very  sensible  letter  of  the  Rev.  A. 
DeWolfe  Howe,  expressing  similar  views. 


TJie  Dismissal  of  Ministers.  27'i 

The  Bishop  in  his  address  noticed  that  there  had  been 
until  1859,  two  canons  of  the  General  Convention  relating 
to  the  dissolution  of  the  pastoral  connection.  One,  the  ex- 
isting Canon  4  of  title  11,  and  the  other  of  differences  be- 
tween ministers  and  their  congregations ;  that  in  1859,  a 
substitute  for  this  canon  had  been  reported  by  the  joint  com- 
mittee on  canons,  which  was  not  acted  upon,  while  the  orig- 
inal canon  was  repealed. 

The  last  clause  of  the  substitute  proposed,  declared  that 
it  should  not  be  binding  where  a  diocese  had  made  or  should 
thereafter  make  provision  by  canon  on  the  subject. 

The  Bishop  forcibly  points  out  the  evil  of  a  vestry  dis- 
missing a  rector,  and  then  asking  a  concurrence.  The 
standing  committee  of  New  York,  in  a  case  referred  to  in 
Hoffman's  "  Law  of  the  Church,"  p.  330,  held  that  the  ap- 
plication for  concurrence  must  precede  the  act  of  dismission. 

The  Bishop  then  notices  as  a  sound  principle  that  where 
the  rights  and  interests  of  both  minister  and  congregation 
are  concerned,  the  body  to  judge  should  be  composed  of 
clergy  and  laity.  And  he  refers  to  the  suggestion  that  the 
standing  committee  of  a  diocese  would  be  a  proper  body  to 
collect  the  facts  and  present  the  result  to  the  Bishop. 

The  Convention  acted  by  adopting  an  admirable  canon 
which  is  as  follows  :  — 

§  1.  Whereas  it  is  provided  in  Canon  4,  title  11,  of  the 
digest  of  canons  of  the  General  Convention,  that  when  a 
minister  has  been  regularly  settled  in  a  parish  or  church,  he 
shall  not  be  dismissed  without  the  concurrence  of  the  eccle- 
siastical authority  of  the  diocese  ;  it  is  hereby  provided  that 
in  cases  of  controversy  between  any  rector  or  assistant  min- 
ister of  any  church  or  parish  which  cannot  be  settled  by  the 
parties  themselves,  the  said  parties  or  either  of  them  may 
make  written  application  to  the  Bishop  of  the  diocese,  who 
shall  thereupon  nominate  four  presbyters  and  four  laymen 
of  the  diocese,  and  cause  a  list  of  their  names  to  be  served 
upon  the  rector  or  assistant  minister,  and  also  upon  the 
clerk  or  secretary  of  the  vestry,  upon  one  or  more  of  the 
applicants  on  behalf  of  the  congregation,  who  shall,  within 


272     Ecclesiastical  Law  in  the  State  of  Neio  Yorlc. 

ten  clays  after  such  service,  return  their  respective  lists  to 
the  Bishop,  each  party  having  the  right  of  striking-  off  the 
name  of  one  clergyman  and  one  layman  ;  and  should  this 
right  not  be  exercised,  or  both  parties  strike  off  the  same 
names,  then  the  Bishop  shall  reduce  the  number  in  the  man- 
ner above  prescribed  to  four,  three  of  whom  shall  constitute 
a  quorum,  and  shall  meet  at  such  time  and  place  as  the 
Bishop  may  designate,  and  of  which  due  notice  shall  be 
given  to  the  parties  concerned,  in  order  that  the  grounds  of 
the  controversy  may  be  fully  stated  and  the  case  fully  heard. 

§  2.  If  it  shall  appear  to  a  majority  of  the  board  thus 
summoned,  after  a  full  examination  of  the  case,  that  there 
is  no  hope  of  a  favorable  termination  of  such  controversy 
and  that  a  dissolution  of  the  connection  is  necessary,  they 
shall  recommend  to  such  rector  or  assistant  minister,  to  re- 
linquish his  connection  with  such  parish,  on  such  conditions 
as  shall  appear  to  them  proper  and  reasonable. 

§  3.  The  said  recommendation  shall  be  submitted  in 
writing,  and  in  duplicate  to  the  Bishop,  who,  if  he  shall 
clearly  disapprove  of  the  same,  may  set  aside  said  recom- 
mendation, and  nominate  a  new  board  which  shall  proceed 
in  the  manner  hereinabove  mentioned,  and  whose  recom- 
mendation and  finding  shall  be  final.  The  Bishop  shall  make 
known  to  the  parties  the  said  recommendation  if  not  set 
aside,  or  if  set  aside,  then  the  said  final  recommendation, 
within  ten  days  after  the  receipt  of  the  same,  and  he  shall 
report  all  proceedings  to  the  Convention  at  its  next  annual 
meeting,  with  a  statement  of  the  grounds  of  his  action  iu 
case  he  shall  have  disapproved  of  the  first  finding  in  any 
case  as  aforesaid. 

§  4.  Should  the  rector  or  assistant  minister  refuse  to 
comply  within  ten  days  after  the  decision  shall  have  been 
made  known  to  him,  he  shall  be  liable  to  suspension  from 
the  exercise  of  all  ministerial  functions  until  he  submit  to 
such  decision. 

§  5.  And  if  the  vestry  of  the  church  or  the  congregation 
refuse  or  neglect  to  comply  on  their  part  with  the  decision 
aforesaid,  the  said  parish  shall  be  prohibited  from  a  repre- 


The  Dismissal  of  Ministers.  273 

sentatiou  in  the  Convention  of  the  diocese,  until  they  shall 
have  performed  their  duty  in  accordance  with  the  same. 

It  is  submitted,  that  a  canon  framed  upon  the  followinj^ 
basis,  would  be  expedient :  Making-  the  assent  of  the  eccle- 
siastical authority  to  the  dissolution  of  the  connection  and 
dismission  of  a  minister,  absolutely  essential. 

If,  upon  written  statements  of  the  parties,  such  authority 
cannot  produce  a  reconciliation,  or  obtain  a  consent  to  the 
dissolution,  a  commission  shall  be  ai)pointed  of  two  presby- 
ters and  two  laymen,  to  inquire  and  report  upon  the  case, 
upon  notice  to  both  parties. 

Upon  the  written  request  of  either  party,  the  ecclesias- 
tical authority  shall  nominate  four  presbyters  and  four  lay- 
men, etc.     [Adopting  the  Canon  of  Ohio  as  above.] 

18 


CHAPTER  XXIII. 

THE   INTERPOSITION    OF   CIVIL   TRIBUNALS. 

In  no  part  of  the  world  is  the  g-reat  principle  of  the  ex- 
clusive rule  of  the  Church  in  matters  ecclesiastical,  and  of 
the  State  in  matters  civil,  more  generally  recognized  than 
in  the  United  States.  The  provision  in  the  Statute  of  24 
Henry  VIII.,  is  almost  universally  admitted :  "  Causes 
spiritual  must  be  judged  by  judges  of  the  spirituality,  and 
causes  temporal  by  temporal  judges."  I  cite  some  leading 
cases  to  show  the  adoption  and  application  of  this  maxim. 

§  1.  Sentences.  In  Den  v.  Bolton  (7  Halstead's  N.  J. 
Rep.  206),  the  Court  say  :  "  All  disputes  arising  in  the  Dutch 
Reformed  Church  respecting  the  validity  of  an  appointment, 
or  call  of  elders  and  deacons,  must  be  referrred  to  the 
church  judicatory,  to  which  the  congregation  is  subordi- 
nate ;  that  is,  first  the  Classis,  next  to  the  particular  Synod, 
and  lastly  to  the  General  Synod.  At  a  meeting  of  the 
Classis  to  which  the  congregation,  of  which  the  Reverend 
Mr.  Demarest  was  pastor,  was  subject,  he  was  suspended 
from  the  ministry.  The  question  is,  Was  this  suspension 
within  the  jurisdiction  of  the  Classis?  It  appears  to  be 
given  expressly  in  the  39th  Article.  The  shortness  of  the 
notice  was  the  subject  of  some  forcible  remarks,  but  I  find 
no  rule  in  the  constitution  of  the  Church ;  and  of  course,  it  is 
within  the  discretion  of  the  Classis.  The  suspension,  then, 
appears  to  be  the  judgment  of  a  competent  court,  within  its 
jurisdiction,  having  authority  over  the  party  and  the  subject, 
with  an  appeal  to  a  higher  tribunal  by  any  one  aggrieved ; 
from  which  no  appeal  was  taken,  and  to  which,  therefore,  we 
are  bound,  sitting  in  another  judicatory,  to  give  respect  and 
effect,  without  inquiring  into  the  sufficiency  of  the  grounds 
of  the  sentence." 


The  Interposition  of  Civil  Trihiinals.  275 

In  the  German  Reformed  Church  v.  The  Commonwealth 
(3  Barr's  Penn.  Rep.  282),  upon  a  mandamus  to  restore 
the  relator  to  the  stauding  and  rights  of  a  minister  of  the 
Church,  the  Court  say :  "  If  the  relator  is  injured  by  the 
decree  of  the  Consistory,  his  remedy  is  by  appeal  to  a  higher 
ecclesiastical  court.  The  decisions  of  an  ecclesiastical  court, 
like  every  other  judicial  decision,  are  final,  as  they  are  the 
best  judges  of  what  constitutes  an  offense  against  the  Word 
of  God,  and  the  discipline  of  the  Church.  The  civil  courts? 
if  they  should  be  so  unwise  as  to  attempt  to  supervise  their 
judgments  on  matters  which  come  within  their  jurisdiction, 
would  only  involve  themselves  in  uncertainty  and  doubt. 
Until  a  final  adjudication  by  the  Church  judicatories,  we 
think  the  relator  is  without  remedy  by  mandamus."  This 
case  indicates,  that  had  the  appellate  tribunal  established 
the  right  of  the  relator,  a  civil  court  might  have  been  re- 
sorted to  for  restitution  to  possession  of  temporal  rights  or 
property. 

In  Harmon  v.  Desher  (1  Spear's  Eq.  Rep.,  South  Carolina, 
p.  80),  the  Synod  of  the  Lutfieran  Church  had  expelled  Mr. 
Desher,  a  minister.  The  Court  observe :  "He  stands  there- 
fore, convicted  of  the  offenses  alleged  against  him,  by  the 
sentence  of  the  spiritual  body  of  which  he  was  a  voluntary 
member,  and  whose  proceedings  he  had  bound  himself  to 
abide  by.  It  belongs  not  to  a  civil  court  to  enter  into  or 
review  the  proceedings  of  a  spiritual  court.  The  structure 
of  our  government  has,  for  the  preservation  of  civil  liberty, 
rescued  the  temporal  institutions  from  religious  interfer- 
ence ;  and  on  the  other  hand,  it  has  secured  religious  lib- 
erty from  the  invasion  of  the  civil  authority.  The  judg- 
ments, therefore,  of  religious  associations  upon  their  own 
members,  are  not  examinable  here." 

In  Wilson  v.  The  Presbyterian  Church  of  Johns'  Island 
(2  Rich.  Eq.  Rep.  192,  S.  C),  the  distinction  as  to  the  prov- 
inces of  the  tribunals  is  thus  drawn  by  the  Chancellor :  "  I 
regret  that  suits  relating  to  ecclesiastical  affairs  have  be- 
come common  in  our  courts,  and  that  undefined  and  mis- 
taken views  have  been  entertained  in  relation  to  the  powers 


276    Ecclesiastical  Laiv  in  the  State  of  Nevj  YorJc. 

of  civil  and  ecclesiastical  tribunals.  I  think  it  necessary  to 
repeat,  what  other  judges  have  thought  it  necessary  to  say, 
that  the  civil  tribunals  possess  no  authority  whatever,  to 
determine  on  ecclesiastical  matters,  on  questions  of  heresy, 
or  what  is  orthodox  in  matters  of  belief;  and  so  the  ecclesi- 
astical authority  may  not  entertain  any  civil  questions  or  in 
any  manner  affect  a  disposition  of  property  by  the  decisions 
of  their  judicatories.  The  Court  cannot  interfere  with  the 
determination  of  the  majority,  in  any  manner,  except  to 
correct  a  misappropriation  of  trust  property  or  funds." 

A  very  important  case  (Forbes  v.  Eden)  was  decided  in 
the  House  of  Lords,  in  1867.  It  was  an  appeal  from  the 
Court  of  Sessions  in  Scotland,  by  the  Rev.  Mr.  Forbes, 
minister  of  an  episcopal  congregation  at  Buntisland,  the 
defendant  being  the  Primus  of  the  church.  The  question 
depended  upon  the  obligation  of  the  appellant  to  obey  the 
canons  adopted  in  1862  -  63,  He  objected  to  the  introduc- 
tion of  portions  of  the  English  Book  of  Common  Prayer, 
particularly  the  Burial  of  the  Dead,  Ministration  of  Baptism 
to  Infants,  and  the  Visitation  ^  the  Sick. 

The  Lord  Chancellor  said :  "  That  no  civil  court  could  take 
cognizance  of  the  rules  of  a  voluntary  religious  society  made 
for  the  regulation  of  its  own  affairs,  except  so  far  as  they 
related  to  collateral  questions  affecting  the  disposal  of  prop- 
erty. The  appellant  had  not  shown  that  he  had  sustained 
any  injury  for  which  a  civil  court  could  give  redress."  He 
proceeded  to  examine  the  ecclesiastical  portion  of  the  case, 
although  he  thought  that  in  strictness  the  House  was  not 
called  on  to  deal  with  it.  He  considered  it  was  entirely 
within  the  competency  of  the  Synod  to  enact  the  new  can- 
ons, and  they  bound  the  appellant.  The  appeal  was  dis- 
missed. 

But  while  full  effect  is  given  to  the  sentence  of  an  eccle- 
siastical tribunal,  certain  fundamental  rules  of  law  must 
have  been  observed  ;  and  when  civil  rights  as  to  property  are 
involved,  the  secular  tribunals  will  examine  so  far  as  to  see 
that  these  have  been  obeyed. 

There  must  be  an  unquestionable  jurisdiction  in  the  tri- 
bunal over  the  subject-matter,  and  over  the  party. 


The  Interposition  of  Civil  Tribunals.  277 

The  nature  of  the  accusation  against  him  must  have  beeu 
specified  with  reasonable  precision,  and  he  must  have  had 
reasonable  opportunity  to  answer  it.  He  must  have  had 
notice  of  the  trial  or  proceeding,  an  opportunity  to  produce 
his  own,  and  examine  the  opposing  witnesses  ;  the  right  to 
the  aid  of  counsel. 

And  it  is  always  open  to  impeachment  as  having  been  ob- 
tained by  connivance  or  fraud.  (Story's  Conflict  of  Laws, 
chapter  15.) 

The  case  of  Brinsley  v.  Davison,  4  Scammon's  Keports, 
539,  is  valuable  on  this  head. 

When  the  record  of  a  court  of  general  jurisdiction  shows 
either  that  the  defendant  was  personally  served  with  pro- 
cess, or  personally  appeared  to  the  action,  the  defendant  is 
estopped  from  showing  a  want  of  jurisdiction  over  him. 
Otherwise  it  is  but  prima  facie  evidence  of  jurisdiction. 

When  the  record  shows  that  there  was  no  service,  per- 
sonal or  virtual,  and  no  appearance,  it  is  a  nullity. 

If  service  or  appearance,  other  than  personal  is  shown,  it 
is  presumptive  evidence  that  by  the  laws  of  the  State  giving 
the  judgment,  jurisdiction  was  acquired.  But  this  may  be 
rebutted. 

In  the  case  of  Hatcher  v.  Rochelau  (18  N.  Y.  Rep.  86),  it 
was  held  that  where  the  Court  is  of  a  limited  jurisdiction, 
it  is  enoug-li  if  the  record  states  that  the  process  was  served, 
and  the  party  appeared  by  attorney.  In  the  case  of  a  court 
of  general  jurisdiction,  it  was  unnecessary  to  prove  services 
or  appearance,  though  the  defendant  was  at  liberty  to  con- 
trovert the  facts.  It  was  not  competent  to  show  that  the 
judgment  was  erroneous,  or  damages  awarded  were  too  great. 

§  2.  Pending  Proceedings.  In  Walker  v.  Wainwright  (16 
Barbour's  N.  Y.  Rep.  486),  an  application  was  made  for  a 
perpetual  injunction  to  restrain  the  <lefendant,  a  bishoj)  of 
the  Protestant  Episcopal  Church,  from  carrying  into  effect 
a  sentence  of  an  ecclesiastical  tribunal  against  the  plaintiff, 
a  minister  of  that  church.     By  the  Court : 

"  The  only  ground  on  which  the  Court  can  exercise  any 
jurisdiction  in  this  case  is,  that  the  threatened  action  of  the 


278    Ecclesiastical  Laiv  in  the  State  of  New  York. 

defendant  may  affect  the  civil  rights  of  the  plaintiff,  for  the 
protection  of  which  he  has  a  proper  recourse  to  the  civil 
courts.  The  rights  here  invoked  for  that  purpose  are,  his 
exemption  from  taxation,  and  the  performance  of  certain 
civil  duties.  Conceding  (though  without  ruling  the  point) 
that  liere  is  ground  enough  for  the  action  of  the  Court,  it 
becomes  material  to  say,  that  the  only  cognizance  which  the 
Court  will  take  of  the  case  is,  to  inquire  whether  there  is  a 
want  of  jurisdiction  in  the  defendant,  to  do  the  act  which  is 
souafht  to  be  restrained.  I  cannot  consent  to  review  the 
exercise  of  any  discretion  on  his  part,  or  to  inquire  whether 
his  judgment,  or  that  of  the  subordinate  ecclesiastical  tri- 
bunal, can  be  justified  by  the  facts  of  the  case.  I  cannot 
draw  to  myself  the  duty  of  revising  their  action  any  further 
than  to  inquire  whether,  according  to  the  law  of  the  asso- 
ciation to  which  the  parties  belong,  they  had  authority  to 
act  at  all." 

In  Hagar  v.  Whitehouse,  Bishop  of  Illinois,  and  others 
(Superior  Court  of  Chicago,  1863),  Chief  Justice  Wilson  de- 
livered the  opinion.  The  case  arose  on  a  motion  to  dissolve 
an  injunction  which  restrained  the  Bishop  and  the  other 
defendants  from  proceeding  in  the  investigation  of  charges 
preferred  against  the  complainant,  a  presbyter  of  the 
Church.     It  sought  also  a  commission  to  take  evidence. 

Upon  the  statements  of  the  bill  there  could  be  no  doubt 
of  the  duty  of  the  Bishop  to  proceed.  Such  duty  was  im- 
posed upon  him  by  the  canons.  It  would  have  been  incum- 
bent upon  him  to  do  so  without  them.  An  investigation 
was  necessary  for  the  sake  of  the  Church,  as  well  of  the 
comphiinant.  His  triers  would  be  his  peers,  standing  in  the 
same  church  relation  as  himself,  naturally  anxious  to  save 
the  Church  and  him  from  disgrace. 

No  civil  court  will  interfere  with  the  legitimate  exercise 
of  the  functions  of  Church  judicatories.  A  church  was  a 
voluntary  association,  and  its  constitution,  laws,  and  canons 
are  stipulations  between  the  parties,  defining  their  duties 
and  obligations.  The  civil  rights  of  the  members  are  still 
protected  by  the  civil  tribunals,  except  so  far  as  they  have 


The  Interposition  of  Civil  Tribiinals.  279 

been  voluntarily  submitted  to  tlie  adjudication  of  the  associ- 
ation of  which  they  are  members. 

The  courts  will  not  interfere  to  prevent  the  association  from 
deciding'  any  matters  which  the  parties  have  ag-reed  to  sub- 
mit to  their  decision,  except  where  some  principle  of  public 
policy  is  contravened,  or  it  is  against  good  morals.  . 
In  no  case  has  a  civil  court  interfered  to  prevent  an  ecclesi- 
astical tribunal  from  trying  an  officer  of  a  church  for  the 
purpose  of  discipline,  according  to  the  canons  and  rules  of 
such  church.  Nor  does  the  fact  that  the  probable  sentence 
of  the  ecclesiastical  tribunal  may  incidentally  aifect  his  civil 
rights,  give  a  court  of  chancery  jurisdiction.  His  rights 
under  contract  will  still  be  vindicated  in  common-law  courts. 

Whether  in  the  contract  of  a  rector,  it  is  implied  that  he  shall 
do  no  act  which,  hy  the  law  of  the  Church,  disqualifies  him  from 
officiating  as  rector,  it  is  unnecessary  to  decide. 

The  results  of  the  opinion  are  thus  stated :  That  civil 
courts  will  not  interfere  to  prevent  an  investigation  before 
an  ecclesiastical  tribunal  of  a  voluntary  religious  association, 
when  proceeding  according  to  its  constitution,  canons,  or 
rules,  and  when  the  subject-matter  and  person  are  within  its 
jurisdiction. 

That  a  court  of  chancery  will  not  issue  a  commission  to 
take  depositions  to  be  read  before  tribunals  not  established 
by  law. 

§  3.  Salaries  and  other  Provisions  for  Support.  The  effect 
of  an  ecclesiastical  sentence  upon  civil  rights  is  frequently 
tested  in  actions  for  salaries  or  subscriptions. 

Thus  in  The  Reformed  Dutch  Church  v.  Bradford,  stated 
in  full,  ante,  chap.  20,  §  2,  the  validity  and  finality  of  a  sen- 
tence of  an  ecclesiastical  tribunal  was  recognized.  The 
question  upon  which  great  differences  of  opinion  arose 
among  the  judges  was,  whether,  the  sentence  of  suspension 
in  the  court  below  being  appealed  from,  impaired  the  right 
to  the  salary  for  the  period  before  its  affirmation.  It  was 
strongly  urged  that  the  right  continued  until  a  valid  final 
dismission,  which  could  only  be,  and  actually  was  formally 
had,  after  the  affirmance.     The  dismission  l)y  Classis  pend- 


280    Ecclesiastical  Laio  in  the  State  of  Neio  York. 

ing  the  appeal  from  the  suspensory  decree,  was  held  void  by 
the  Synod. 

The  majority  of  the  Court  of  Errors  considered  that  the 
suspension  was  sufficient  to  defeat  the  claim. 

The  peculiarity  of  this  part  of  the  discipline  of  the  Dutch 
Church  gives  its  strength  to  the  argument  of  those  members 
of  the  Court  who  sustained  the  claim  for  the  salary  in  the 
intervening  period.  A  formal  official  act  of  dismission  is 
prescribed  as  a  consequence  of  a  conviction.  But  in  other 
cases,  the  general  doctrine  of  an  appeal  has  great  weight 
upon  the  question.  The  sentence  is  an  absolute  judicial 
decision,  which  may  be  reversed,  but  whose  force  and  execu- 
tion is  only  so  far  interfered  with  as  is  necessary  to  make  an 
appeal  available.  Indeed,  in  ecclesiastical  courts  in  England, 
an  inhibition  is  necessary  to  stop  the  Court  below  from  pro- 
ceeding. 

In  the  cases  in  Massachusetts,  we  find  the  claim  to  salary 
rigorously  supported,  unless  the  case  is  controlled  by  some 
special  contract,  or  the  dismission  has  been  eflFected  by  the 
sanction  of  a  competent  mutual  council.     {Ante,  chap.  20 

§  1.) 

In  Diffendorf  v.  The  Reformed  Calvinistic  Church  (20 
Johns.  Rep.  12),  the  action  was  upon  a  subscription  for  the 
support  of  the  minister  of  the  said  church,  "  so  long  as  the 
Rev.  John  I.  Wack  is,  and  remains  our  regular  preacher." 
Wack  had  been  deposed  by  Classis  for  immoral  conduct ;  but 
on  appeal,  the  sentence  was  reversed.  The  Court  held  the 
final  decision  to  be  conclusive ;  that  the  pastoral  relation 
had  not  been  dissolved,  and  sustained  the  action. 

I  presume  few  lawyers  would  hesitate  in  saying  that  a 
sentence  of  a  competent  tribunal  of  the  church  with  which 
the  clergyman  was  connected,  fairly,  and  on  proper  notice 
obtained,  deposing  or  suspending  him,  annulled  any  civil 
contract  as  to  salary  or  property,  unless  something  of  express 
provision  controlled  the  point. 

§  4.  Dedication  of  Praperty  in  trust  for  Religious  Purposes. 
The  case  of  the  Rev.  Dr.  Bullions  in  Vermont,  and  our  own 
State,  is  a  leading  case. 


The  Interposition  of  Civil  Tribunals.  281 

A  will  contained  the  following  provision  :  "  I  will  and  de- 
vise the  sum  of  one  hundred  and  fifty  dollars,  as  a  donation 
to  the  Associate  Congreg-ation  of  Rygate,  to  he  placed  under 
the  direction  of  the  trustees  of  said  society,  and  the  interest 
thereof  to  he  annually  paid  to  their  minister  forever."  (Smith 
V.  Nelson,  18  Vermont  Rep.  511.) 

One  branch  of  the  proceedings  related  to  the  Rev.  Mr. 
Pringle.  This  requires  but  little  attention.  The  point  was, 
that  the  Synod  which  had  dissolved  a  Presbytery,  had  no 
jurisdiction  to  do  so  at  the  time.  But  if  it  had  that  power, 
it  could  not  delegate  it  to  others  (even  part  of  its  own  body), 
and  authorize  them  to  depose  the  ministers. 

Now  the  existence  and  competence  of  jurisdiction  is  a 
prerequisite  upon  which  a  civil  tribunal  insists,  before  it  will 
regard  a  sentence  as  of  any  force. 

The  case  as  to  the  Rev.  Dr.  Bullions  presented  the  diffi- 
culties. 

The  Presbytery  to  which  he  was  subject,  pronounced  a 
sentence  of  deposition  on  the  grounds  of  slander  and  con- 
tempt of  court,  and  contumacy.  An  appeal  was  taken  to 
the  Synod,  but  not  duly  prosecuted.  However,  the  whole 
case  was,  by  consent  of  the  parties,  brought  before  the  Sy- 
nod, where  the  judgment  was  confirmed. 

The  Supreme  Court  of  Vermont  entered  into  an  examina- 
tion of  the  proceedings  of  the  ecclesiastical  tribunals,  and 
concluded  that  the  deposition  was  illegal.  The  principle  is 
thus  laid  down.  The  proceedings  of  the  Synod  of  the  Asso- 
ciate Church  as  a  court  of  last  resort,  are  not  to  be  held  con- 
clusive when  they  come  in  question  directly  or  collaterally 
in  courts  of  law;  but  their  regularity  and  effect  may  be 
exauiined  and  determined,  upon  the  same  principles  which 
subject  the  proceedings  of  inferior  courts  or  voluntary  asso- 
ciations, to  inquiry  and  adjudication." 

I  need  advert  to  but  one,  and  the  strongest  objection  the 
Supreme  Court  acted  upon. 

Several  members  of  the  Presbytery  which  tried  him  had 
been  of  those  slandered  by  him. 

Dr.  Bullions  interposed  a  declinature  to  the  jurisdiction 


282    Ecclesiastical  Law  in  the  State  of  Neiv   York. 

of  the  Presbytery  on  this  gToimd.  The  Synod  overruled  it. 
The  Supreme  Court  of  Vermont  held  the  last  decision  incon- 
clusive, and  the  objection  good.  Vice-Chancellor  Willard, 
and  I  consider  the  whole  Bench  of  the  Fourth  Circuit  of  our 
State,  held  the  decision  conclusive,  recognizing-  the  force  of 
the  objection,  but  holding  that  by  his  appeal  and  the  decis- 
ion against  him,  he  was  barred.  (See,  particularly,  Justice 
Hand's  Opinion,  9  Barbour's  Rep.  134.) 

One  point  much  less  open  to  doubt,  was  also  decided  in 
Smith  V.  Nelson,  namely :  That  there  was  nothing  in  the 
terms  of  the  bequest  which  indicated  that  the  testator  in- 
tended to  make  the  bequest  depend  upon  the  continuance 
of  the  society  in  the  particular  connection  then  existing,  or 
with  any  particular  tenets. 

One  other  point  is  to  be  noticed.  Nothing  can  be  added 
by  implication  to  the  express  terms  of  the  contract  between 
a  minister  and  society.  But  if  a  minister  ceases  to  be  able 
to  perform  his  duties  by  reason  of  immorality,  or  other  suf- 
ficient reasons  of  his  own  creating,  it  may  furnish  a  ground 
for  the  parties  to  dissolve  the  relation,  or  for  one  of  them  to 
consider  it  as  forfeited  by  the  other. 

To  make  this  consistent  with  the  other  points  determined 
in  Vermont,  we  must  understand,  that  the  reasons  for  such 
forfeiture  must  be  tested  upon  facts  and  law,  by  trial  in  the 
civil  courts.       • 

This  case,  Robinson  v.  Bullions,  came  before  Vice-Chan- 
cellor Willard  in  1850.1     He  decided  — 

(1.)  That  the  property  was  devoted  to  the  support  of 
preaching  the  gospel  and  administering  the  ordinances  in 
the  congregation,  according  to  the  ftiith  and  discipline  of 
the  Associate  Church  of  North  America ;  and  no  minister 
under  sentence  of  deposition  or  excommunication,  could  per- 
form such  services  in  the  Associate  Church  of  Cambridge. 

(2.)  That  the  appropriation  of  the  property  for  the  sup- 
port of  Bullions  since  he  was  deposed,  was  an  unlawful  ap- 
propriation and  diversion  from  the  purposes  of  the  trust, 
and  a  violation  of  the  duty  of  the  defendants  as  trustees. 

1  9  Barbour's  Sup.  Court  Rep.  64. 


The  Interpodtion  of  Civil  TnhunaU.  283 

(3.)  That  such  trustees  be  removed,  and  a  new  election  be 
had,  unless  the  complainants  and  those  acting  with  them, 
liad  held  an  election,  in  which  case  those  chosen  were  de- 
clared trustees. 

(4.)  That  the  complainants  and  those  concurring-  with 
them,  who  adhered  to  the  Associate  Presbytery  of  Cam- 
bridge, as  subordinate  to  the  Associate  Synod  of  North 
America,  were  the  only  members  of  the  corporatio^i  to  whom 
the  property  in  question  belonged,  and  that  such  property 
be  delivered  up  to  them. 

(5.)  That  an  account  be  taken  and  a  perpetual  injunction 
issue  against  the  defendants,  restraining  the  defendants 
from  applying  the  avails  of  the  property  to  the  support  or 
use  of  Dr.  Bullions,  during  the  sentence  of  deprivation. 

The  case  was  appealed  to  the  Supreme  Court  of  the  Fourth 
Circuit  (9  Barbour's  Rep.  64),  Justice  Hand  delivered  a  very 
learned  opinion,  in  the  results  of  which  Justice  Paige  con- 
curred.    Justice  Cady  dissented  on  several  points. 

The  decree  of  the  Vice-Chancellor  was  reversed,  except 
so  far  as  it  restrained  the  defendants  from  applying  the 
property  to  his  support  or  use,  so  long  as  he  was  under  the 
sentence  of  deprivation. 

(1.)  All  the  judges  concurred  in  holding  that  the  sentence 
of  the  ecclesiastical  tribunal  deposing  Dr.  Bullions  was  con- 
clusive, and  that  such  a  dissolution,  under  our  decisions, 
discharged  the  civil  contract.  The  appeal  taken  by  him  in 
the  ecclesiastical  court,  and  the  affirmance  of  the  judgment, 
was  decisive  as  to  all  the  objections  urged  against  the  pro- 
ceedings below. 

(■2.)  The  grantor,  in  a  deed  to  a  religious  corporation,  may 
make  a  connection  with  a  particular  body  or  church  judica- 
tory, a  condition  of  the  grant.  And  the  corporate  or  de- 
nominational name  may  indicate  the  nature  of  the  trust,  as 
to  doctrines  deemed  fundamental. 

(3.)  But  the  description  of  the  grantees,  as  being  trust- 
ees of  a  church,  at  that  time  in  connection  with  a  particular 
Presbytery  or  Synod,  or  as  having  a  specified  person  as  its 
minister,  does  not  amount  to  a  condition  that  the  church  or 


284    Ecclesiastical  Laiv  in  the  State  of  New   York. 

society  shall  remain  in  connection  with  that  particular  judi- 
catory. 

Justice  Cady  dissented  from  this  proposition. 

An  appeal  was  taken  to  the  Court  of  Appeals  (1  Kernan, 
24),  by  the  complainants.  There  was  none  by  the  defend- 
ants. The  decree  was  affirmed.  But  great  doubt  is  thrown 
upon  that  part  of  the  decree  which  restrained  the  employ- 
ment of  Dr.  Bullions,  and  application  of  the  funds,  to  his 
use.     This  will  appear  from  the  following  passages :  — 

"  While,  therefore,  it  is  settled,  as  far  as  these  parties 
are  concerned  by  the  acquiesence  of  the  defendants  in  the 
decree  of  the  Supreme  Court,  that  the  trustees  had,  and 
still  have  no  right  to  employ  Dr.  Bullions,  there  is  no  rea- 
son for  following  up  that  error,  by  requiring  them  to  ac- 
count." 

His  deposition  and  excommunication  had  nothing  what- 
ever to  do  with  the  right  of  the  congregation  to  employ  him 
so  far  as  the  administration  of  the  temporalities  was  con- 
cerned, although  it  might  subject  them,  or  some  portion  of 
them,  to  spiritual  censure  or  ecclesiastical  penalties. 

And  the  eighth  proposition  of  the  summary  of  Justice 
Seldon  is  this  :  "  That  the  trustees  of  a  relig'ious  corporation 
in  this  State  cannot  receive  a  trust  limited  to  the  support 
of  a  particular  faith  or  a  particular  class  of  doctrines,  for 
the  reasons  that  it  is  inconsistent  with  those  provisions  of 
the  statute  which  gave  to  the  majority  of  the  corporators, 
without  regard  to  their  religious  tenets,  the  entire  control 
of  the  revenue  of  the  corporation." 

The  second  and  third  of  his  propositions  illustrate  this 
one.  The  society  itself  is  incorporated,  not  the  trustees 
merely  ;  and  its  members  are  the  corporators. 

The  relation  of  the  trustees  to  the  society  is  not  that  of  a 
private  trustee  to  a  cestui  que  trust,  but  they  are  the  man- 
aging officers  of  the  corporation  and  trustees,  in  the  same 
sense  in  which  directors  of  a  bank  are  trustees,  invested 
with  powers  conferred  by  statute,  and  with  the  ordinary  dis- 
cretionary powers  of  similar  corporate  officers. 

Three  judges  of  the  Court,  Gardiner,  Parker,  and  Edwards, 


The  Interposition  of  Civil  TrihiinaU.  285 

concurred  with  Judge  Selden  in  the  eighth,  as  well  as  in  the 
other  propositions.  Judge  Denio  dissented  from  it.  Judge 
Ruggles  was  absent,  and  Judge  Johnson  did  not  take  part 
in  the  decision. 

Judge  Allen  delivered  an  opinion.  While  we  do  not  find 
in  it  any  express  recognition  of  the  eighth  proposition,  nor 
a  position  identical  with  it,  the  first  and  second  paragraphs 
do  tend  to  sanction  it. 

Again,  the  seventh  proposition  of  Judge  Selden  is  :  "  That 
when  a  deed  is  executed  to  trustees  for  religious  purposes, 
and  the  use  is  expressed  in  general,  and  not  in  specific 
terms,  it  cannot  be  inferred  from  the  religious  tenets  and 
faith  of  the  grantee  (grantor),  that  it  was  intended  to  limit 
the  use  to  the  support  of  the  particular  doctrines  which  he 
preferred,  or  the  religious  class  to  which  he  belonged, 
although  if  the  language  creating  the  trust  be  ambiguous, 
evidence  of  the  surrounding  circumstances,  and  among  them 
perhaps,  of  the  faith  of  the  donor,  may  be  received,  us  in 
other  cases,  to  aid  in  its  construction." 

In  this  proposition,  I  understand,  all  the  judges  concurred. 

The  learned  judge,  in  a  previous  part  of  his  opinion  says  : 
"  I  by  no  means  deny  that  the  grantor  of  jjroperty  to  the 
trustees  of  a  religious  corporation,  may  annex  such  condi- 
tions to  the  grant  as  he  may  choose,  not  inconsistent  with 
law ;  and  that  the  trustees  may  take  the  property  subject  to 
the  conditions.  For  instance,  property  may  be  conveyed  to 
them,  to  be  held  so  long  as  the  society  continues  in  a  certain 
ecclesiastical  connection,  or  so  long  as  it  supports  a  minister 
of  a  certain  ftiitli ;  and  this  condition,  if  explicit  and  clear, 
would  be  good.  An  uncertain  condition  would  be  void. 
The  title  of  the  trustees  under  such  a  deed  would  be  good 
so  long  as  a  majority  of  the  corporators  chose  to  abide  by 
the  condition ;  and  when  that  was  departed  from,  their  title 
would  be  forfeited.  This  is  widely  different  from  a  trust 
which  is  to  be  enforced  in  opposition  to  the  will  of  the  ma- 
jority." 

The  distinction  of  the  learned  judge,  I  understand  to  be, 
that  the  abandonment  of  the  org-anization  or  tenets  indicated 


286    Ecclesiastical  Laio  in  the  State  of  Neiv   York. 

by  a  grantor  as  those  for  the  support  of  which  his  property 
is  given,  works  a  forfeiture  of  the  property,  but  that  a 
minority  cannot  secure  its  appropriation  to  the  designated 
purposes  against  the  will  of  the  majority  of  the  members 
of  the  church  or  society. 

The  principles  of  these  authorities  were  carried  out  to 
their  fullest  logical  results  in  Gram  v.  The  Prussian,  etc.  Ger- 
man Society  (36  N.  Y.  Rep.  161,  1867).  The  property  in 
question  was  received  and  held  by  the  religious  corporation, 
the  defendants,  upon  trust  for  the  support  of  the  German 
Evangelical  Lutheran  faith,  doctrine,  and  government,  as 
held  and  practised  by  the  German  Evangelical  Lutheran 
churches  under  the  Synod  of  Buffalo  and  its  ministers. 

The  defendants,  the  trustees  of  the  church,  had  excluded 
the  plaintiffs,  being  the  pastor,  chorister,  and  sexton,  from 
the  performance  of  their  respective  functions  ;  and  this  was 
found  as  a  fact,  to  have  been  in  violation  of  the  rules  of 
government  of  the  Lutheran  churches,  and  of  the  rights  of 
the  jjlaintiffs,  according  to  the  same.  But  it  was  also  found 
that  the  change  had  been  made  under  the  direction  of  a 
majority  of  the  members  of  the  church  and  corporation. 

It  was  held,  that  the  trusts  were  not  such  as  could  be  en- 
forced, and  the  complaint  was  dismissed. 

Bascom  v.  Albertson  (34  N.  Y.  Rep.  584),  had  settled,  that 
charitable  uses  were  not  excepted  from  the  provision  in  the 
Statute  of  Uses  and  Trusts,  abolishing  all  trusts  except  as 
therein  authorized. 

The  trusts  were  clearly  not  legal  trusts  under  those  pro- 
visions of  the  Revised  Statutes.  Could  they  be  sustained 
under  the  act  of  incorporation  ? 

The  church  was  incorporated  under  the  General  Act  of 
1813.  That  act  was  not  affected  by  the  Revised  Statutes, 
but  remained  in  force.  Tucker  v.  St.  Clement's  Church  is 
cited.     The  provisions  of  such  act  are  then  cited  in  detail. 

Robertson  v.  Bullions  is  quoted  :  "  While  the  scope  of 
the  act  is,  that  the  property  is  to  be  devoted  to  the  promo- 
tion of  religion  through  the  observance  of  divine  worship, 
and  the  ministrations  of  ministers  and  teachers ;  and  any 


The  Interposition  of  Civil  Tribunals.  287 

diversion  from  such  general  purpose  would  be  an  abuse  of 
the  trust,  which  a  court  of  equity  would  correct,  yet  it  was 
equally  evident,  that  the  statute  did  not  contemplate  a  devo- 
tion of  such  property  perpetual  and  unchangeable,  to  the 
support  of  a  particular  system  of  religious  faith  and  doc- 
trine, or  ecclesiastical  rule  or  discipline.  .  .  .  The  idea 
of  such  a  trust  necessarily  implies,  that  if  a  division  occurs 
in  the  society,  holding  the  same  faith  at  the  beginning,  the 
portion  adhering  thereto  must  remain  the  cestuis  que  trust, 
to  the  exclusion  of  those  who  do  not  so  adhere.  This  can- 
not be  done." 

All  the  judges  of  the  Court,  except  Scrugham  who  did 
not  vote,  concurred  in  this  decision. 

It  may  be  considered  as  settled  in  our  State,  that  if  prop- 
erty is  given  to  a  church  or  congregation  incorporated  un- 
der our  general  statutes,  by  words  vesting  the  title  in  it, 
and  not  plainly  uniting  the  right  to  hold  it  with  the  faith, 
doctrine  or  order  of  any  particular  denomination  or  body,  a 
change  in  the  religious  tenets  or  church  discipline  held  at 
the  time  of  the  acquisition,  will  not  deprive  the  corporation 
of  that  ])roperty. 

Thus  in  Bunell  v.  The  Associate  Reformed  Church  of  Sen- 
eca (44  Barbour's  Rep.  282),  certain  parcels  of  land  had  been 
conveyed  to  the  trustees  of  the  Associate  Reformed  Church 
of  the  town  of  Salem ;  one  parcel  in  trust  for  the  religious 
society  designated  as  the  Associate  Reformed  Church  of  the 
town  of  Seneca ;  another  parcel  for  the  purpose  of  building 
a  church  on  it,  or  for  a  burying-place ;  and  another  for  a 
parsonage  and  nothing  else. 

The  Associate  Reformed  Church  of  the  town  of  Seneca, 
separated  from  the  church  organization  with  which  it  was 
connected  at  the  time  of  the  grant,  and  united  with  another 
denomination.     Its  title  remained  the  same. 

It  was  held,  after  a  careful  examination  of  the  cases  of 
Robertson  v.  Bullions  and  Petty  v.  Tooker  {2)ost),  that  the 
property  conveyed  belonged  to  the  congregation  which  con- 
sisted of  all  the  members  entitled  to  vote  at  the  election  of 
trustees,  a  majority  of  whom  controlled  the  property,  and. 


288    Ecclesiastical  Latv  in  the  State  of  New   York. 

as  a  necessary  consequence,  decided  the  ecclesiastical  rela- 
tions and  connections  of  the  society,  and  the  character  of 
the  relig'ious  views,  opinions,  and  doctrines,  to  be  inculcated 
from  the  pulpit. 

In  Petty  v.  Tooker  (21  N.  Y.  Rep.  267),  the  property  was 
conveyed  to  the  trustees  of  a  church  after  it  had  lieeu  incor- 
porated under  the  General  Act.  No  express  condition  as  to 
faith  or  discipline  appears  to  have  been  contained  in  the 
conveyance.  It  seems  to  have  been  a  general  conveyance  to 
the  trustees  for  the  church. 

The  result  of  the  case  is  thus  stated  by  Justice  Parker  in 
the  case  from  36  N.  Y.  Reports,  before  cited.  "  That  case 
involved  the  inquiry,  whether  the  trustees  and  a  majority 
of  the  society  could  chang-e  from  Congregationalists  to 
Presbyterians,  and  retain  possession  of  the  church  property 
against  those  who  adhered  to  the  faith  of  the  founders  of 
the  church  and  society,  and  it  was  held  without  dissent,  that 
they  could." 

Mr.  Justice  Selden,  in  Petty  v.  Tooker,  observed,  that 
property  could  be  secured  to  the  support  of  a  particular 
faith  or  order,  by  having  the  church  and  lot  conveyed  to  the 
society,  upon  the  express  condition  that  it  should  be  forever 
devoted  to  the  purposes  of  religion,  by  a  congregation  main- 
taining a  certain  faith,  and  observing  certain  prescribed 
ordinances  and  forms.  Such  a  condidon,  if  clearly  ex- 
pressed, would  be  valid,  and  no  doubt  would  operate  as  a 
guaranty  against  any  change  in  the  religious  character  of 
the  society." 

This  must  be  considered  in  connection  with  the  observa- 
tions of  the  same  learned  judge  in  Robertson  v.  Bullions, 
before  cited.  It  would  seem  that  even  in  such  a  case,  there 
would  be  a  forfeiture  and  reversion,  but  not  that  the  minor- 
ity adhering  could  secure  the  property  for  their  own  use. 

The  case  of  Gable  v.  Miller  deserves  a  careful  statement 
upon  this  subject.     (10  Paige,  627 ;  2  Denio's  Rep.  492.) 

The  questions  between  the  parties  were :  — 

F'lrd,  whether  the  church  property  was  held  for  the  pur- 
pose of  supporting  the  doctrines  of  the  Reformed  Protestant 


The  Interposition  of  Civil  Tribunals.  289 

Dutch  Church ;  next,  if  it  was  also  held  in  subordination  to 
the  ecclesiastical  government  of  that  church. 

The  Assistant  Vice-Chancellor,  before  whom  the  cause  was 
first  heard,  decided  :  That  neither,  upon  the  facts  attending 
the  original  dedication  of  the  church  and  property,  nor  upon 
any  subsequent  act,  was  there  ground  to  determine  the  first 
question  in  the  affirm  ative. 

That  upon  the  points  wherein  differences  of  views  existed, 
or  were  supposed  to  exist,  between  the  strictly  defined  ten- 
ets of  the  Dutch  Reformed  Church,  and  the  teachings  rep- 
resented by  the  defendants,  there  was  no  evidence  to  show 
that  such  teachings  varied  substantially  from  those  which 
(it  was  to  be  drawn  from  the  evidence)  were  held  by  the 
original  founders  and  donors. 

Historically  speaking,  there  were  considerable  differences 
in  the  dogmatic  teachings  of  the  Lutheran  Church,  as  it 
was  termed,  and  the  Dutch  Reformed  Church,  upon  points 
of  moment. 

And  secondly,  the  case  was  clear  upon  the  testimony,  that 
no  inseparable  connection  with,  or  subordination  to,  the 
ecclesiastical  judicatory,  none  making  the  holding  of  the 
property  dependent  upon  it,  was  ever  formed. 

The  complaint  was  dismissed.  See  the  opinion,  2  Denio's 
Rep.  p.  510. 

The  Chancellor  differed  on  both  points,  holding  — 
That  there  was  a  dedication  of  the  funds  and  property  to 
the  worship  of  God  according  to  the  Calvinistic  doctrines 
of  the  Dutch  Reformed,  German  Reformed,  and  Helvetic 
Churches ;  that  the  tenets  and  doctrines  of  these  were  sub- 
stantially the  same,  and  the  property  was  for  the  use  of  those 
who  held  them.  Again,  that  the  church  was  under  the  gov- 
ernment and  discipline  of  the  Dutch  Reformed  Church. 
That  the  plaintiffs  as  holding  such  tenets  and  recognizing 
such  subordination  were  entitled. 

Nothing  can  be  more  explicit  than  his  assent  to  the  prin- 
ciples of  the  English  and  Scotch  cases,  cited  by  the  Assist- 
ant Vice-Chancellor,  to  which  he  adds.  Dill  v.  Watson,  in 
the  Irish  Exchequer,  1836.    Thus,  he  says :  "  Those  for  whose 

19 


290    Ecclesiastical  Laiv  in  the  State  of  Neiv   York. 

use  the  donations  were  intended  have  a  right  to  claim  that 
the  property  of  the  chnrch  shall  be  applied  to  the  worship 
of  God,  and  to  the  propag-ation  of  the  doctrines,  and  the 
administering"  the  sacraments  of  the  church  as  then  estab- 
lished, unless  the  defendants  can  show  that  the  trust  has 
been  changed  by  general  consent  of  all  persons  interested 
therein,  or  that  the  diversion  of  the  fund  to  other  purposes 
has  been  so  long  acquiesced  in  as  to  constitute  a  bar  by 
lapse  of  time. 

The  decree  was  reversed,  and  a  decree  was  made  in  favor 
of  the  plaintijlfs. 

In  the  Court  of  Errors,  the  result  was  a  reversal  of  the 
decree  of  the  Chancellor,  and  affirmance  of  that  of  the  As- 
sistant Vice-Chancellor.  The  reporter  justly  observes,  that 
it  is  difficult  to  say  on  what  grounds  a  majority  concurred. 
Perhaps  the  opinion  of  Senator  Barlow  is  more  likely  to 
have  ruled  the  majority  than  any  other.  That  no  portion 
of  the  temporalities  in  question  appear  to  have  been  con- 
veyed or  contributed  upon  any  trusts  relating  to  religious 
doctrine  or  church  government ;  but  if  this  were  otherwise, 
that  there  had  been  no  such  material  deviation  from  the 
former  faith  or  practice  as  would  authorize  the  interposition 
of  the  Court  of  Chancery. 

In  ascertaining  what  can  be  supported  as  a  valid  appro- 
priation of  property  under  the  language  of  the  Act  of  1813, 
"  for  the  use  of  such  church,  congregation,  or  society,  or 
other  pious  uses,"  we  may  clearly  assume  that  Tucker  v. 
St.  Clement's  Church  (3  Sandf.  242;  8  N.  Y.  Rep.  558),  is 
law  still.  The  Court  of  Appeals  sustained  the  Court  below. 
The  gift  was  of  the  rents,  issues,  and  profits,  or  income  if 
the  land  was  sold,  "  to  be  applied  to  the  maintenance  and 
support  of  the  rector  or  minister  for  the  time  being  of  such 
church,  and  for  no  other  purpose." 

So  in  Williams  v.  Williams  (8  N.  Y.  Rep.  52.5),  there  was 
a  gift  of  86,000  to  the  trustees  of  the  Presbyterian  Church 
and  congregation,  in  the  village  of  Huntington,  and  their 
successors,  in  trust  for  the  support  of  a  minister  of  such 
church  as  now  constituted. 


The  Interposition  of  Civil  Trihunah.  291 

The  Court  of  Appeals  in  Bascom  v.  Albertson  (34  N.  Y. 
Rep.  599),  says  :  "  We  entertain  no  doubt  tliat  the  bequest 
in  that  case  was  properly  upheld.  It  was  a  gift  to  a  relig- 
ious corporation  legally  authorized  to  take  and  hold  the  fund 
for  purposes  within  the  scope  of  its  charter." 

While  thus  a  gift  or  conveyance  for  tlie  use  of  a  church, 
or  support  of  a  minister,  and  other  pious  purposes,  a  par- 
sonage for  example,  are,  I  presume,  perfectly  valid  within  the 
Act  of  1813,  it  seems  to  be  the  unavoidable  result  that  the 
property  will  belong  to  the  majority  of  the  voters,  although 
they  change  their  doctrine  and  church  subordination. 

It  appears  that  a  mode  of  avoiding  this  result,  is  by  a 
condition  or  trust  in  the  grant  unequivocally  expressed, 
making  the  tenure  of  the  property  dependent  upon  the 
continued  observance  of  certain  doctrines  or  ecclesiastical 
organization.  And  even  in  this  case,  it  seems,  that  the 
abandonment  by  the  majority  of  the  tenets  and  order,  for 
support  of  which  the  property  was  given,  w  orks  a  forfeiture 
and  reverter  to  the  donor.  The  minority  of  the  church  who 
adhere  cannot  demand  the  property. 

It  may  be  observed,  that  this  point  has  not  been  absolute- 
ly decided  as  a  point  essential  to  any  decision  made.  The 
dedication  of  property  on  such  conditions,  is  allowed  and 
assumed  to  be  for  a  pious  use,  within  the  statute,  and  it  is 
validly  held  for  these  purposes,  while  the  majority  adhere  to 
them.  Why  the  laudable  and  legal  intentions  of  the  donor 
should  be  defeated,  and  the  minority,  willing  to  carry  them 
out,  possess  no  voice,  is  not  a  very  satisfactory  conclusion. 

It  is  intimated,  however,  that  a  diversion  to  what  could 
not  in  any  proper  sense,  be  considered  a  pious  use,  would 
justify  a  court  in  interfering. 

§  5.  Elections.  When  a  church  or  corporation  takes  ad- 
vantage of  an  act  of  incorporation,  it  subjects  itself  volun- 
tarily to  all  the  provisions  and  regulations  of  such  act.  Any 
inconsistent  ecclesiastical  regulation  becomes  superseded. 

Thus  as  to  elections  of  the  officers  of  such  incorporated 
churches,  whatever  is  prescribed  in  the  statute  must  be  pre- 
cisely followed,  and  whatever  is  obscure  or  omitted,  must  be 


292  Ecclesiastical  Laiv  in  the  State  of  New   York. 

explained  and  supplied  by  the  maxims  of  the  civil  law  ap- 
plicable to  the  subject. 

It  follows,  that  when  a  statute,  under  which  an  incorpo- 
ration has  been  had,  contains  leg-islation  upon  the  subject 
of  elections,  qualifications  of  voters,  etc.,  the  civil  tribunals 
obtain  cognizance  of  the  matter. 

The  mode  of  proceeding  is  regulated  by  the  four  hundred 
and  thirty-second  section  of  the  Code  :  "  An  action  may  be 
brought  by  the  Attorney-General  in  the  name  of  the  people 
of  the  State,  upon  his  own  information,  or  the  complaint  of 
any  private  party,  against  the  parties  offending,  in  the  fol- 
lowing," among  other  cases  :  "  When  any  person  shall  usurp, 
intrude  into,  or  unlawfully  hold  or  exercise  any  public  office, 
civil  or  military,  or  any  franchise  within  this  State,  or  any 
office  in  a  corporation  created  by  the  authority  of  this 
State." 

In  Hart  v.  Harvey  (10  Abbott,  322,  and  13  Abbott,  332), 
it  was  ruled,  that  an  action  for  an  injunction  was  not  the 
mode  of  trying  the  right  to  an  office  in  a  religious  corpora- 
tion. The  remedy  was  an  action  in  the  nature  of  a  quo 
warranto. 

In  Tlie  People  on  the  relation  of  Devoe  v.  Lawrence  and 
others,  Sept.  1866,  an  action  was  brought  to  test  the  validity 
of  an  election  for  vestrymen  in  an  Episcopal  Church,  and  a 
jury  being  waived,  the  judge  found  the  facts  and  law,  as  to 
the  parties  entitled  to  the  offices,  that  the  defendauts  had 
intruded  into,  and  unlawfully  held  the  office  of  vestrymen ; 
and  that  the  relators  were  lawfully  entitled  to  the  same. 

The  course  of  practice  in  these  actions  under  the  Code  is 
in  substance  the  same,  and  governed  by  the  same  rules  as 
prevailed  under  the  former  practice.  (The  People  ex  rel. ; 
Smith  V.  Pease,  30  Barbour's  Rep.  588.) 

Without  ferther  details  on  this  subject,  I  refer  to  The 
People  V.  Carpenter,  24<  N.  Y.  Rep.  86 ;  People  ex  rel. ;  Smith 
V.  Pease,  27  N.  Y.  Rep.  45. 

That  a  mandamus  may  sometimes  be  resorted  to  is  shown 
by  the  case  of  The  People  on  the  relation  of  Heeut  v.  White, 
11  Abbott's  Rep.  163. 


The  Interposition  of  Civil  Tribunals.  293 

111  the  German  Reformed  Church  v.  Leibert  (3  BaiT's 
Peiiii.  Rep.  290),  the  relator  in  manthimus  had  been  refused 
admission  as  a  voter  because  he  was  no  longer  a  member, 
having-  been  excommunicated.  A  strong  point  was  taken 
by  the  Court.  It  was  urged  that  the  power  of  the  Consis- 
tory extended  only  to  a  repulsion  from  the  Lord's  Table  ; 
but  to  annul  the  right  of  membership,  the  consent  of  the 
congregation  was  requisite.  The  Court  admit  that  this 
seemed  to  be  the  import  of  the  fifth  and  sixth  articles  of 
the  Church  discipline.  Assuming  it  to  be  so,  the  remedy 
was  by  appeal  to  the  superior  tribunal.  The  judge  points 
out  how  that  was  provided  for.  He  observes,  that  whether 
the  assent  was  given  or  not,  did  not  appear. 


APPENDIX. 


NOTE   I. 

TRINITY    CHURCH. 

The  charter  of  May  6,  1697,  was  granted  by  Governor  Fletcher 
upon  a  petition  of  Colonel  Heathcote,  and  others,  stating  the  con- 
tributions for  erecting  a  church,  etc.,  and  provided,  among  other 
things,  as  follows :  — 

That  the  aforesaid  church  erected  as  aforesaid,  and  the  ground 
thereto  adjoining  inclosed  and  used  for  a  cemetery  or  church-yard, 
shall  be  the  parish  church  and  church-yard  of  the  parish  of  Trinity 
Church  within  our  said  city  of  New  York ;  and  the  same  is  hereby 
dedicated  to  the  service  of  God,  and  to  be  applied  thereunto  (or 
therein,^)  to  the  use  and  behalf  of  the  inhabitants  from  time  to  time 
inhabiting  and  to  inhabit  within  our  said  city  of  New  York,  in  com- 
munion with  our  said  Protestant  Church  of  England  as  now  estab- 
lished by  law,  and  to  no  other  use  whatever. 

Rector.  "  There  shall  be  a  rector  to  have  care  of  the  souls  of  the 
inhabitants  of  said  parish,  and  a  perpetual  succession  of  rectors." 

"  And  we  create  and  make  our  trusty  and  well  beloved  the  Lord 
Bishop  of  London,  and  his  successors,  rectors  of  the  said  parish, 
together  with  all  the  inhabitants  from  time  to  time  inhabiting  and 
to  inhabit  in  our  said  city  of  New  York,  and  in  communion  of  our 
said  Protestant  Church  of  England,  as  now  established  by  our  laws, 
a  body  corporate  and  politic,  with  the  powers  and  privileges  here- 
after mentioned." 

Name  of  Body  Coif  orate.  "  "We  constitute  and  declare,  that  our 
Henry,  Lord  Bishop  of  London,  and  his  successors,  and  all  such  of 
our  loving  subjects,  as  now  are  or  hereafter  shall  be  admitted  into 
the  communion  of  the  aforesaid  Protestant  Church  of  England,  as 

1  The  word  in  the  copy  in  the  office  of  Secretary  of  State  is  "  therein  " ;  in  Judge 
Troup's  copy,  "  thereunto." 


296  Appendix. 

now  established  by  our  laws,  shall  be,  from  time  to  time,  and  for- 
ever hereafter,  a  body  politic  and  corporate,  in  fact  and  name,  by 
the  name  of  the  Rector  and  Inhabitants  of  our  said  City  of  New 
York,  in  communion  of  our  Protestant  Church  of  England,  as  now 
established  by  our  laws." 

By  that  name  they  were  to  have  perpetual  succession,  were  made 
capable  to  sue  and  be  sued,  etc.,  "  and  also  to  have,  take,  possess, 
receive,  acquire,  and  purchase  lands,  tenements,  hereditaments,  or 
any  goods  and  chattels,  and  the  same  to  use,  lease,  grant,  demise, 
alien,  bargain,  and  sell,  and  dispose  of  at  their  own  will  and  pleas- 
ure, as  others  our  liege  people,  or  any  corporation  or  body  politic 
within  our  realm  of  England  or  this  our  province,  may  lawfully  do, 
not  exceeding  the  yearly  value  of  five  thousand  pounds,  the  statute 
of  mortmain,  or  any  other  statute  law,  custom,  or  usage,  to  the 
contrary  notwithstanding." 

"  The  said  rector  shall  have  the  care  of  the  souls  of  the  inhab- 
itants within  the  said  parish,  and  in  the  communion  of  our  said 
Protestant  Church  of  England." 

"  The  patronage  and  presentation  of  the  said  rectory  and  parish , 
after  the  decease  of  the  first  rector,  shall  belong  to,  and  be  hereby 
vested  in,  the  church-wardens  and  vestrymen,  or  the  major  part  of 
the  said  vestrymen,  together  with  either  of  the  church-wardens  for 
the  time  being." 

Vestry.  —  How  Chosen.  "  There  shall  be  annually,  on  the  Tues- 
day in  Easter- week,  two  church-wardens  and  twenty  vestrymen  duly 
elected,  by  the  majority  of  votes  of  the  inhabitants  of  the  said 
parish,  in  communion  as  aforesaid." 

Power  as  to  Parish  Affairs.  "  The  rector,  church-wardens,  and 
vestrymen  shall  make  the  number  of  the  whole  to  be  twenty-three 
persons ;  and  the  said  vestrymen,  or  any  eleven  or  more  of  them 
(whereof  the  rector  for  the  time  being,  or  his  assistant  or  clarke  by 
appointment,  and  one  of  the  church-wardens  to  be  two),  shall,  and 
may  have  and  exercise  the  like  power  and  authority  for  the  order- 
ing and  regulating  the  affairs  of  the  said  corporation  and  parish  of 
Trinity  Church,  as  the  vestry  of  the  parish  of  St.  Mary  Bow  {with- 
in our  city  of  London  in  our  realm  of  England),  now  have  and  exer- 
cise, relative  to  parish  affairs ;  and  upon  the  death  or  other  voidance 
of  any  such  vestryman,  they,  or  any  eleven  or  more  of  them  shall, 
and  may  elect  a  fit  person,  inhabitant  and  householder  in  the  said 
parish,  to  supply  the  same. 

Pews.     "The  church-wardens  for  the  time  being  shall  not  at 


Appendix.  297 

any  time  dispose  of  any  of  the  pews  or  places  in  pews  in  the  said 
church,  to  any  person  not  an  inhabitant  thereof,  nor  without  the 
consent  and  allowance  of  the  vestrymen  for  the  time  being,  or  any 
eleven  or  more  of  them. 

Rates  for  Repairs,  etc.  "  The  said  church-wardens,  together  with 
eleven  or  more  of  the  vestrymen  shall,  and  are  hereby  authorized, 
from  time  to  time,  to  make  rates  and  assessments  in  manner  afore- 
said, for  repairing  and  amending  the  church,  steeple,  cemetery,  or 
church-yard  of  the  said  parish,  when  need  shall  be  ;  the  said  rates 
to  be  paid  to  the  chmxh-wardens,  and  to  be  made,  collected,  con- 
firmed, and  allowed  as  aforesaid. 

The  Sole  Parish  Church.  "  We  do  give,  grant,  ratify,  and  con- 
firm unto  the  said  rector  and  inhabitants  of  our  said  city  of  New 
York,  in  communion  of  our  said  Protestant  Church  of  England,  as 
now  established  by  our  laws,  that  the  said  church  and  cemetery,  or 
church-yard,  situate,  lying,  and  being  within  our  said  city  of  New 
York  as  aforesaid,  shall  be  the  sole  and  only  parish  church  and 
church-yard  of  our  said  city  of  New  York." 

The  £100  Appropriated.  It  was  declared,  that  the  rector  of  the 
said  parish  church  was  a  Protestant  minister,  within  the  intent  of 
the  act  of  Assembly  passed  in  the  fifth  year  of  the  reign  (1693),  en- 
titled "  An  Act  for  the  Settling  of  a  Ministry,"  etc.  The  yearly 
maintenance  of  one  hundred  pounds  was  directed  to  be  assessed 
and  paid  to  the  said  rector.  The  church-wardens  and  vestrymen 
appointed  under  such  act,  were  every  year  to  assess  and  collect 
such  sum  in  the  manner  therein  prescribed.  They  were  made  lia- 
ble to  an  action  of  debt  if  they  neglected  it. 

The  said  rector  and  inhabitants  were  authorized  to  appoint,  alter, 
and  change  the  days  and  times  of  meeting  as  they  should  think  fit. 

Admission  of  Members.  And  to  choose,  nominate,  and  appoint 
so  many  others  of  our  liege  people  as  they  shall  think  fit,  and  shall 
be  willing  to  accept  the  same,  to  be  members  of  the  church  and 
corporation  and  body  politic,  and  them  into  the  same  to  admit. 

Election  of  other  Officers.  "  And  to  elect  and  constitute  such 
other  officer  and  officers  as  they  shall  think  fit  and  requisite  for  the 
orderly  management  and  despatching  of  the  afiairs  of  the  said 
church  and  corporation  and  their  successors. 

To  Ordain  By-Laws.  "  And  from  time  to  time  to  make,  ordain, 
constitute,  or  repeal,  rules,  orders,  and  ordinances  for  the  good  and 
welfare  of  the  members  of  the  said  church  and  corporation,  so  that 
they  be  not  repugnant  to  the  laws  of  our  realm  of  England,  and  of 
this  province." 


298  Appendix. 

The  church-wardens  and  vestrymen  or  any  other  persons  ap- 
pointed by  them,  might  upon  the  Lord's  day,  after  divine  service, 
or  at  any  other  time,  a  time  when  they  should  see  fit,  talie  and  re- 
ceive free  and  voluntary  gifts,  alms,  and  contributions,  and  employ 
them  towards  finishing  of  the  said  church,  steeple,  or  premises,  or 
any  other  pious  and  charitable  work,  as  to  them  should  seem  meet. 

Habendum.  "  To  have  and  to  hold  all  and  every  the  premises, 
with  all  and  singular  the  rights,  etc.,  unto  them,  the  said  rector  and 
inhabitants  of  our  said  city  of  New  York,  in  communion  of  the 
Protestant  Church  of  England,  as  now  established  by  our  laws,  and 
their  successors." 

"  To  the  sole  and  only  use  of  them,  etc.  to  be  holden  in  free  and 
common  socage  as  of  our  Manor  of  East  Greenwich,  in  our  county 
of  Kent,  within  our  realm  of  England ;  yielding  yearly  and  every  year 
the  rent  of  one  peppercorn,  if  the  same  be  lawfully  demanded." 

Act  of  1704.  On  the  27th  of  June,  1704,  an  act  was  passed 
"  granting  certain  privileges  and  powers  to  the  rector  and  inhabi- 
tants of  the  city  of  New  York,  of  the  communion  of  the  Church 
of  England  as  by  law  established." 

It  recited  the  erection  of  a  church,  and  the  holding  the  same, 
with  a  cemetery,  and  piece  of  ground  adjoining ;  with  certain  pow- 
ers, rights,  and  privileges  necessary  for  the  management  of  the 
affairs  of  such  church.  "  To  the  end  therefore  that  such  religious 
work  may  be  founded  upon  some  lasting  foundation,  grow  up  and 
become  fruitful  to  the  praise  and  glory  of  God,  the  good  example 
of  others  and  the  benefit  of  their  posterity  and  successors,"  it  was 
enacted :  — 

"  That  the  rector  and  inhabitants  of  the  said  city  of  New  York, 
in  communion  of  the  Church  of  England,  as  by  law  established, 
and  their  successors,  shall  be  enabled  for  the  maintenance  and 
recovery  of  their  estates,  rights,  and  privileges,  to  sue  and  be  sued, 
defend  and  be  defended,  by  the  same  name  of  the  Rector  and  In- 
habitants of  the  City  of  New  York,  in  communion  of  the  Church  of 
England,  as  by  law  established ;  and  by  the  same  name,  they  and 
their  successors,  shall  have,  hold,  use  and  enjoy  all  their  said  church, 
burying-place,  and  land  thereto  belonging,  by  whatever  name  here- 
tofore purchased  or  had,  or  to  them  given  or  granted  ;  to  the  sole 
and  proper  use  and  benefit  of  the  said  rector  and  inhabitants,  and 
their  successors  forever,  in  as  firm  and  ample  manner  in  the  law,  as 
if  the  said  rector  and  inhabitants  had  been  legally  incorporated, 
and  made  capable  in  the  law  of  taking,  purchasing,  and  holding 


Appendix.  299 

the  same,  at  and  before  the  purchasing  and  taking  of  the  said  cem- 
etery and  lands  thereunto  belonging." 

Poxoer  to  take  Lands.  By  the  second  section,  the  said  rector  and 
inhabitants  by  the  same  name,  were  authorized  to  purchase  and 
hold  lands,  tenements,  etc.,  and  to  lease,  demise,  and  improve  the 
same,  to  the  benefit  of  the  church,  and  other  pious  uses,  not  exceed- 
ing five  hundred  pounds  yearly  rent. 

They  were  empowered  to  alter  and  enlarge  the  church  ;  to  erect 
a  dwelling-house  for  the  use  of  the  rector,  a  vestry-room,  charnel- 
house,  and  other  necessaries  of  the  said  church. 

Advowson.  By  the  third  section  it  was  enacted  "  that  the  patron- 
age and  advowson  of  the  said  church  and  right  of  presentation 
after  the  death  of  the  present  rector,  or  upon  next  avoidance,  and 
forever  thereafter,  shall  belong  and  appertain  to  the  church-ward- 
ens and  vestrymen  of  the  said  church,  annually  elected  or  to  be 
elected,  by  the  inhabitants  aforesaid,  in  communion  as  aforesaid,  in 
manner  hereafter  mentioned  and  expressed,  or  to  the  major  part  of 
such  church-wardens  and  vestrymen  for  the  time  being,  whereof  a 
church-warden  always  to  be  one." 

Institution,  etc.  "  Such  rectors  shall  be  instituted  and  inducted 
into  the  said  church,  in  such  manner,  and  always  as  shall  be  most 
suitable  and  agreeable  to  her  Majesty's  instructions  to  the  Governor 
of  this  colony  for  the  time  being,  and  the  canonical  authority  which 
the  Bishop  of  London  and  his  successors  hath  and  shall  have  over 
the  said  church." 

The  £100  Appropriated.  By  the  fourth  section,  the  succeeding 
rector  or  incumbent  of  the  church  (after  the  death  or  other  avoid- 
ance of  Mr.  Vesey,  the  then  rector),  and  his  successors  forever,  be, 
and  shall  be,  instituted,  authorized,  and  empowered,  to  have  and 
receive  the  sum  of  one  hundred  pounds  yearly,  raised  and  levied 
upon  the  inhabitants  of  the  said  city,  for  the  maintenance  of  a 
good  sufiicient  Protestant  minister,  in  the  said  city,  by  virtue  of  an 
act  of  the  Assembly  of  the  fifth  year  of  the  reign  of  King  William 
and  Queen  Mary  (1693),  entitled  "  An  Act  for  Settling  a  Minister 
in,"  etc. 

Section  5  authorized  the  use  of  a  common  seal,  and  to  alter, 
break,  and  new  make  it  at  discretion. 

Annual  Choice  of  Wardens,  etc.  And  by  section  six,  it  was  made 
lawful  "  for  the  inhabitants  aforesaid  to  assemble  and  meet  together 
on  Tuesday  in  Easter-week  annually,  at  the  said  church,  to  choose 
two  church-wardens  and  twenty  vestrymen,  communicants  of  the 


300  Appendix. 

said  church,  to  serve  and  officiate  in  and  for  the  next  ensuing  year, 
by  the  majority  of  the  voice  of  the  said  communicants  so  met,  and 
not  otherwise. 

"  Such  church-wardens  so  chosen  and  hereafter  to  be  cliosen  an- 
nually, have,  and  shall  have  like  power  and  authority,  to  do,  execute, 
and  perform  their  said  offices  respectively,  as  church-wardens  and 
vestrymen  in  England  ;  unless  some  particular  difference  may  hap- 
pen by  the  express  power  and  direction  of  the  present  act  of  the 
General  Assembly." 

The  said  church-wardens,  or  one  of  them,  were  authorized,  so 
often  as  would  be  needful,  to  call  a  meeting  of  the  vestrymen  of 
said  church,  to  meet  the  rector  for  the  time  being,  if  any  there  be, 
and  church-wardens,  or  one  of  them. 

The  rector  and  church-wardens,  or  one  of  them,  and  a  majority 
of  the  vestrymen,  were  empowered  to  make  rules  and  orders  for 
managing  the  affairs  of  the  church,  and  to  have  the  sole  disposition 
and  ordering  of  all  payments  of  the  church  moneys. 

In  case  of  the  death  of  a  rector,  and  before  the  church  was  sup- 
plied mth  another,  the  said  powers  were  fully  vested  in  church- 
wardens, by  and  with  the  advice  and  consent  of  a  major  number 
of  the  whole  vestrymen,  and  not  otherwise. 

Power  was  given  to  the  church-wardens  and  vestrymen,  or  the 
major  part  of  them,  whereof  one  church-warden  was  always  to  be 
one,  without  the  rector,  to  establish  the  fees  and  perquisites  of  their 
rector,  clerk,  sexton,  and  all  other  officers  of  the  parish,  not  to  ex- 
ceed the  fees  and  perquisites  usually  taken  in  England. 

Also  to  regulate  the  fees  for  breaking  the  church-yard,  and 
burying  the  dead ;  but  not  to  exceed  the  fees  reserved  in  the  grant 
of  the  church-yard,  made  by  the  mayor,  aldermen,  and  commonalty 
of  the  city  of  New  York,  for  the  use  of  Trinity  Church. 

In  case  of  the  death  of  any  of  the  church-wardens  or  vestrymen, 
within  the  year,  it  was  made  lawful  for  the  inhabitants  aforesaid,  in 
communion  as  aforesaid,  at  any  time  upon  such  emergency,  to  meet 
at  the  church  upon  notice  given  by  the  rector,  to  elect  and  choose 
others,  qualified  as  aforesaid,  in  their  room  ;  who  were  to  execute 
the  offices  of  such  as  they  shall  be  chosen  to  succeed  respectively, 
until  the  time  of  the  next  annual  election. 

By  the  seventh  section,  the  rector  for  the  time  being  might,  upon 
the  avoidance  of  such  officers,  appoint  a  clerk,  sexton  or  sextons, 
who  shall  continue  in  office  during  their  natural  lives,  unless  they 
voluntarily  surrender,  or  become  incapable  of  serving  by  sickness, 


Appendix.  301 

or  other  infirmity,  or  misbehaves  ;  iu  which  case  the  rector,  with  the 
advice  and  consent  of  the  church-wardens,  or  one  of  them,  and 
vestrymen,  or  major  part  of  them,  might  displace  or  remove  such 
officer  and  officers  so  misbehaving  themselves,  and  not  otherwise. 

The  powers,  privileges,  and  liberties  granted,  were  to  be  construed 
most  favorably  for  the  benefit  of  the  said  church. 

The  act  was  not  to  be  construed  to  abridge  the  indulgence  or 
liberty  of  conscience  granted  to  other  Protestant  Christians  by  the 
act  of  the  first  year  of  the  late  William  and  Mary,  entitled,  " '  An 
Act  for  exempting  their  Majesties  Protestant  subjects,  dissenting 
from  the  Church  of  England,  from  the  penalty  of  certain  laws ; ' 
or  by  any  other  law  or  statute  of  the  realm  of  England,  or  this 
plantation." 

Grant  of  1705.  The  grant  of  the  Queen's  farm  and  the  Queen's 
garden  of  the  20th  November,  1705,  recite  the  incorporation  under 
the  Act  of  June,  1704,  and  the  power  to  take  and  hold  lands  to  the 
benefit  of  the  said  church  and  other  j)ious  uses. 

The  habendum  was, "  unto  the  said  rector  and  inhabitants  of  the 
city  of  New  York,  in  communion  with  the  Church  of  England,  as 
by  law  established,  and  their  successors  forever." 

I  have  now  stated  all  of  charter  or  legislation  which  bears  upon 
any  question  connected  with  the  rights  and  franchises  of  Trinity 
Church,  prior  to  the  Revolution. 

What  are  the  legal  conclusions  ? 

(1.)  Trinity  parish  was  constituted  the  only  parish  in  the  city  of 
New  York,  and  the  parish  was  made  co-extensive  with  the  city. 

At  that  time  (1697),  the  city  was  Manhattan  Island.^  It  is 
declared  to  be  the  sole  and  only  parish  church  of  our  said  city  of 
New  York.  Various  passages  in  the  charter  support  this  view. 
The  petition  of  Trinity  Church  in  1813  states,  that  this  was  in- 
tended, and  was  the  fact  and  law. 

(2.)  The  Act  of  Assembly  of  June  1704,  was  not  necessary  for 
the  incorporation,  nor  did  it  supersede  the  charter  of  1697.  The 
Crown  charters  have  always,  under  the  colonial  or  state  systems, 
been  upheld.     The  act  confirmed  what  had  been  granted,  with  full 

1  The  county  of  New  York  to  contain  all  the  islands  commonly  called  Manhattan 
Island,  Manning  Island,  the  two  Barn  Islands,  and  the  three  Oyster  Islands ;  Manhattan 
Island  to  be  called  the  city  of  New  York,  and  {n-ith)  the  rest  of  the  islands  the  county. 
(Act  of  Octol>er  1,  1691.  Hoffman's  Estate,  etc.  of  the  Corporation  of  New  York,  vol. 
ii.  p.  33.)  I  conceive  that  the  word  idth  italicized  is  necessary  to  show  the  full  mean- 
ing. See  the  Act  of  November  1,  1683,  quoted  Ibid,  which  appears  to  favor  this 
view. 


302  A]pinndix. 

legislative  authority,  and  added  some  things ;  and  the  alterations  it 
made,  being  accepted,  became  valid.  Upon  one  important  subject, 
that  of  taxing,  legislative  power  was  probably  requisite,  and  crown 
authority  insufficient. 

(3.)  The  corporators  were  "  Henry,  Lord  Bishop  of  London,  and 
his  successors,  rectors  of  the  said  parish,  together  with  all  the  in- 
habitants from  time  to  time  inhabiting,  and  to  inhabit  in  our  said 
city  of  New  York,  and  in  communion  of  our  aforesaid  Protestant 
Church  of  England."  The  Lord  Bishop  of  London  had  been  be- 
fore constituted  the  first  rector. 

(4.)  A  body  was  constituted  to  represent  the  corporators,  con- 
sisting of  church- wardens  and  vestrymen  ;  and  with  the  rector,  to 
manage  the  affairs  of  the  parish. 

(5.)  The  rector  was  to  have  the  care  of  the  souls  of  the  inhabi- 
tants within  the  parish.  He,  or  his  assistant  or  clerk  by  appoint- 
ment, as  a  distinct,  integral  part  of  the  vestry,  had  the  power,  with 
the  wardens  and  vestrymen,  or  a  warden  and  a  majority  of  vestry- 
men, to  manage  the  affairs.  He,  with  the  advice  and  consent  of 
the  wardens  and  vestrymen  as  specified,  had  the  appointment  of  a 
minister  to  be  assistant  and  preacher. 

(6.)  The  patronage,  donation,  advowson,  or  presentation  of  a 
minister  was  vested  in  the  church-wardens  and  vestrymen,  or  the 
major  part  of  the  vestrymen  with  one  church-warden. 

Therefore  in  the  presentation  of  the  Rev.  Henry  Barclay  as 
rector  to  Governor  Clinton,  the  vestry  style  themselves  the  true 
and  undoubted  patrons  of  the  rectory  of  the  parish  of  Trinity 
Church.  The  admission  which  properly  belongs  to  the  Bishop  was 
delegated  to  the  Governor.  See  instructions  to  the  governors,  pas- 
sim, in  "  Documents  relating  to  Colonial  History,"  vol.  iii.  p.  372, 
ihid.  688.  No  clerk  could  be  admitted  and  inducted  without  a  certif- 
icate of  the  Bishop  of  London,  of  his  conformity  to  the  doctrine  and 
discipline  of  the  Church  of  England,  and  being  of  a  goodly  life 
and  conversation. 

(7.)  The  right  to  choose  wardens  and  vestrymen  was  vested  by 
the  charter  in  a  majority  of  the  votes  of  the  inhabitants  of  the  said 
parish,  in  communion  as  aforesaid.  In  the  third  section  of  the  Act 
of  1704,  the  same  phraseology  is  used.  But  in  the  sixth  section  of 
that  Act,  the  inhabitants  aforesaid  are  to  assemble,  and  to  choose 
wardens  and  vestrymen,  communicants  of  the  said  church,  to  serve, 
etc.,  by  the  majority  of  the  voices  of  the  said  communicants  so  met, 
and  not  otherwise. 


Appendix.  303 

Yet,  after  careful  consideration,  I  think  that  this  phrase  cannot 
receive  a  larger  construction,  than  the  term  in  communion  with. 

In  chapter  II.  sections  ,  I  have  treated  at  length  of  the 

meaning  of  the  terms  "  inhabitants  "  and  "  in  communion  with  the 
Protestant  Church  of  England,  as  by  law  established  ; "  also  the 
position  of  chapels  of  ease,  and  of  independent  chapels  or  churches 
organized  within  parish  limits.  The  conclusions  to  be  drawn  from 
these  statements,  I  think,  are  these :  — 

(1.)  As  to  voters,  the  ecclesiastical  qualification  being  in  com- 
munion Avas,  of  course,  satisfied,  by  being  a  communicant,  or  by 
being  baptized  according  to  the  office  of  the  church. 

(2.)  The  being  in  communion  demanded  an  outward  manifesta- 
tion of  conformity  to  the  doctrine  and  discipline  of  the  Church  of 
England. 

This  was  shown,  and  it  was  essential  that  it  should  be  shown,  by 
worshipping  in  the  parish  church,  or  one  of  its  chapels,  if  it  had 
any.  No  one  who  disobeyed  or  neglected  the  express  requisitions 
of  the  statutes  of  Edward  and  Elizabeth,  and  the  Canon  of  1G03, 
could  be  in  communion. 

(3.)  I  think  that  no  one  was  entitled  to  vote  unless  he  had  been 
assessed  and  paid  towards  the  £100  for  the  support  of  the  minis- 
ter ;  or  towards  the  £30  for  the  support  of  the  assistant  and  other 
charges ;  or  towards  charges  assessed  under  the  general  law,  for 
repairs  of  the  church,  and  what  was  necessary  for  conducting  di- 
vine service ;  provided  any  assessment  or  rating  had  been  made 
for  such  purposes.  If  the  vestry  did  not  assess  (from  having  other 
funds,  for  example),  this  qualification  would  not  be  demanded. 

(4.)  But  it  was  clearly  legal  for  the  wardens  and  vestrymen  to 
pass  a  law  fixing  a  money  qualification  by  rate,  or  in  some  other 
mode,  which  should  regulate  the  right  of  voting ;  determining  who 
were  inhabitants  in  communion,  responsible  by  the  law  of  the  land, 
for  the  support  of  the  church. 

(5.)  The  rector,  wardens  and  vestrymen,  were  endued  with  all 
the  powers  vested  in  English  vestries.  No  power  was  more  clear 
than  the  right  to  assess  rates  upon  parishioners. 

(6.)  And  as  a  branch  of  this  power,  and  a  substitute  for  its  mode 
of  exercise,  a  rent  or  tax  could  be  imposed  upon  pews  or  seats,  and 
payment  of  it  could  be  legally  made  a  qualification  for  voting. 

(7.)  Inhabitancy  within  the  parish  (the  city  of  New  York),  was 
essential.  This  meant  at  least,  not  a  temporary  sojourning,  but 
residing  in  it  as  a  home  or  permanent  abode. 


304  Appendix. 

(8.)  The  power  to  establish  chapels,  with  all  their  incidents,  was 
plain  and  indisputable.  The  power  to  assent  to  chapels  being  sep- 
arately organized  and  incorporated  was  clear.  And  equally  so  was 
the  right  to  consent  to  the  establishment  of  new  churches,  and  their 
being  freshly  and  independently  organized  and  incorporated. 

(9.)  When  such  chapels  or  churches  were  separately  organized, 
as  they  were  released  from  their  dependence  upon,  or  subjection  to, 
Trinity  Church,  so  that  they  lost  all  share  in  participation  in  the 
property,  privileges,  or  management  thereof 

(10.)  It  followed,  that  every  part  of  the  city  not  occupied  by 
churches,  with  their  precincts,  thus  by  consent  separately  organized, 
remained  the  parish  of  Trinity  Church.  The  law  of  intrusion  for- 
bade the  constitution  of  any  new  church  without  assent  of  her  rector 
and  vestry,  as  well  as  the  Bishop,  and  permitted  it  with  such  assent. 
Constitution  of  1777.  This  was  the  position  of  Trinity  Church 
when  the  Revolution  took  place.  The  Constitution  of  1777  saved 
the  charter  from  annulment  by  reason  of  any  thing  contained  in  it. 
Its  property,  its  substantial  rights,  franchises  and  privileges  re- 
mained undisturbed. 

Then  came  the  important  Act  of  April,  1784.^  The  following  is 
its  substance :  — 

Section  one  repealed  such  parts  of  the  charter  of  1697  as  ren- 
dered necessary  the  induction  by  a  governor  of  a  rector  to  the 
church. 

It  repealed  such  other  parts  of  the  charter  and  of  the  Act  of 
1704  as  admitted  that  rights  existed  in  the  Bishop  of  London  in 
and  over  such  church.  It  repealed  all  of  the  charter  as  related  to 
the  settling  of  the  ministry,  and  such  law  and  of  the  law  of  1693. 

Every  other  provision  of  the  charter  and  of  the  law  of  1704,  was 
not  only  not  repealed,  but  was  expressly  declared  not  to  be  annulled 
or  repealed  by  that  act ;  nor  by  nonuser  or  misuser,  between  the 
10th  of  April,  1775,  and  the  date  of  this  Act  of  1784,  where  not 
inconsistent  with  the  Constitution  of  the  State. 

By  the  second  section,  the  church-wardens  and  vestrymen  of  the 
said  corporation  or  a  majority  of  them,  were  invested  with  full 
power  to  call  and  induct  a  rector  to  the  said  church,  so  often  as 
there  shall  be  any  vacancy  therein.  The  third  section  is,  "  Where- 
as doubts  have  arisen  on  those  parts  of  the  said  chai-ter,  and  law 
first  above  mentioned  (the  charter  of  1697  and  the  Act  of  1704), 

1  Jones  &  Varick,  i.  p.  128. 


Appendix.  305 

which  speak  of  inhabitants  in  communion  of  the  said  Church  of 
England,  for  removal  thereof; 

"  Be  it  enacted,  that  all  persons  professing  themselves  members 
of  the  Episcopal  Church,  who  shall  either  hold,  occupy  or  enjoy  a 
pew  or  seat  in  the  said  church,  and  shall  regularly  pay  to  the  sup- 
port of  the  said  church  ;  and  such  others,  as  shall,  in  the  said 
church,  partake  of  the  holy  sacrament  of  the  Lord's  Supper,  at 
least  once  in  every  year,  being  inhabitants  of  the  city  and  county 
of  New  York,  shall  be  entitled  to  all  the  rights,  benefits,  privileges, 
and  enaoluments  which,  in  and  by  the  said  charter  and  law  first 
above  mentioned  (1697  and  1704),  are  designed  to  be  secured  to  the 
inhabitants  of  the  city  of  New  York,  in  communion  with  the  Church 
of  England." 

The  sixth  section  recited,  that  as  doubts  might  arise  as  to  the  con- 
tinuance, force,  and  effect  of  certain  acts  of  the  legislature  while  a 
colony,  reciting  them,  namely,  the  Act  of  22d  of  September,  1693, 
of  27lh  of  June,  1704,  of  the  4th  of  August,  1705,  of  the  27th  of 
July,  1721,  of  the  21st  of  September,  1744,  and  certain  parts  of  the 
Act  of  the  29th  of  November,  1745,  which  granted  certain  immuni- 
ties and  privileges  to  the  Episcopal  Church  in  certain  counties  : 
Therefore  such  acts  and  such  portions  of  the  last-mentioned  act 
were  annulled  and  repealed. 

By  an  Act  of  20th  of  April,  1784,  all  the  above  acts  with  several 
others  of  a  subsequent  date  were  repealed,  except  this  Act  of  June 
27,  1704. 

By  the  Act  of  March  10,  1788,  passed  on  the  petition  of  Trinity 
Church,  it  was  enacted  that  the  corporation  should,  and  might  take 
and  use  the  name  of  "  The  Rector  and  Inhabitants  of  the  City  of 
New  Y'ork,  in  communion  of  the  Protestant  Episcopal  Church,  in 
the  State  of  New  York."  All  grants,  deeds,  and  conveyances  made 
to  it  between  the  17th  of  April,  1784,  and  the  date  of  this  act,  by 
its  former  title,  were  confirmed,  as  if  the  Act  of  1704  had  not  been 
repealed,  or  as  if  the  corporation  had  not  been  expressly  named 
therein. 

This  was  the  legal  position  of  Trinity  Church,  until  the  Act  of 
January  25,  1814. 

In  the  mean  time  several  distinct  churches  had  been  organized 
and  incorporated  within  the  city,  to  a  few  of  which  it  is  of  conse- 
quence to  refer. 

In  1793,  Mr.  Stuyvesant  offered  a  conveyance  of  land  and  a  con- 
tribution in  money  toward  the  erection  of  a  church.  Trinity  Church 

20 


306  Appe^idix. 

agreed  to  raise  £5,000  for  the  building.  In  1795  Mr.  Stuyvesant 
conveyed  twelve  lots  of  land,  the  present  site  of  St.  Mark's,  to 
Trinity  Church.  In  1798  the  opinion  of  Alexander  Hamilton  and 
Richard  Harison  was  taken,  and  measures  adopted  to  make  it  a 
separate  church.  The  property  was  conveyed  in  1799  by  Trinity 
Church  to  trustees,  in  trust  for  the  corporation,  when  the  same 
should  be  formed.  Church-wardens  and  vestrymen  were  chosen, 
and  measures  taken  for  an  incorporation  under  the  Act  of  17th  of 
March,  1795.  A  certificate  of  incorporation  was  filed  in  the  county 
clerk's  office  November  22,  1799.  The  lots  were  subsequently  con- 
veyed by  the  trustees  to  the  corporation. 

In  1805,  in  consequence  of  doubts  as  to  whether  certain  omis- 
sions had  not  worked  a  dissolution,  the  church  was  reincorporated 
under  the  Act  of  the  27th  of  March,  1801.  The  certificate  was 
filed  July  3,  1805. 

In  November,  1801,  the  following  opinion  was  given  :  — 
"  In  consequence  of  a  resolution  of  the  vestry  of  Trinity  Church, 
of  the  9th  of  November  instant,  we  have  considered  the  subject 
therein  mentioned,  and  are  of  opinion,  that  the  corporation  of  St. 
Mark's  Church  have  no  valid  pretensions  either  at  law  or  in  equity, 
to  any  part  of  the  property  of  the  rector  and  inhabitants  of  the  city 
of  New  York,  in  communion  of  the  Protestant  Episcopal  Church 
in  the  State  of  New  York  ;  but  for  greater  caution,  we  approve  of 
their  taking  a  deed  from  the  corporation  of  St.  Mark's,  in  the  form 
marked  A,  when  the  lots  lately  set  apart  for  that  purpose,  are  con- 
veyed to  the  said  corporation. 

"  Robert  Troup, 
"  Alexander  Hamilton, 
"  Richard  Hakison." 
"We  here  find  the  perfect  ecclesiastical  organization  of  a  new  par- 
ish within  the  limits  of  Trinity  parish,  by  the  assent  of  the  rector 
and  vestry  of  the  latter.     It  was  endowed  by  a  grant  of  lands  from 
the  Mother  Church,  as  a  parochial  church  in  England  is  endowed 
by  setting  apart  a  portion  of  the  tithes.     The  separation  was  eccle- 
siastically, and  when  incorporated,  civilly  complete.     The  independ- 
ence of  Trinity  Church  and  its  rector  was  absolute,  and  it  inevitably 
followed  that  any  participation  by  its  members  in  the  franchises  or 
government  of  Trinity  Church,  by  voting  for  its  vestrymen  or  other- 
wise, was  lost,  was  voluntarily  abandoned. 

A  similar  course  was  pursued  in  the  year  1811  in  relation  to  St. 
George's  Chapel.     It  was  separately  organized,  incorporated,  and 


Appendix.  307 

endowed  by  Trinity  Church.  An  entire  independence,  and  conse- 
quently an  entire  exchision  was  effected. 

Act  of  1814.  The  Act  of  January,  1814,  may  be  thus  analyzed: 
The  recital  referred  to  the  Act  of  17th  April,  1784,  "  making  such 
alterations  in  the  charter  of  the  corporation  of  Trinity  Church  as 
to  render  it  more  conformable  to  the  constitution."  That  at  that 
time  Trinity  Church  was  the  only  incorporated  religious  society  of 
the  Protestant  Episcopal  Church.  That  other  societies  of  the  same 
denomination  have  been  since  formed  and  incorporated.  That  the 
name  which  they  were  enabled  to  take  under  the  Act  of  1788  had 
now  become  improper,  and  it  was  prayed  it  might  be  altered,  and 
other  alterations  might  be  made.  The  first  section  therefore 
enacted,  that  the  said  corporation  of  Trinity  Church,  instead  of 
their  present  name,  should  take  the  name  of  "  The  Rector,  Church- 
wardens, and  Vestrymen  of  Trinity  Church  in  the  City  of  New 
York." 

It  seems  to  me  clear  that  the  retention  of  the  former  name  would 
not  have  had  the  slightest  effect  upon  any  right  or  question  con- 
nected with  Trinity  Church  or  corporation.  The  qualifications  of 
members  and  voters  would  have  been  the  same,  and  the  exclusion 
of  those  who  had  joined  a  separate  organization  and  incorporation 
would  have  been  as  certain. 

But  the  title  was  undoubtedly  inapt  and  indistinct.  That  of 
Trinity  Church  was  peculiarly  appropriate. 

The  church  which  it  was  prayed  "  might  be  made  parochial  and 
incorporate  with  one  body  politic,"  in  the  preamble  to  the  charter 
of  1G97,  was  the  church  then  lately  built  on  Broadway,  and 
subsequently  declared  to  "  be  the  parish  church  and  church-yard 
of  the  parish  of  Trinity  Church,  within  our  city  of  New  York." 

The  rector,  church-wardens,  and  vestrymen  are  vested  with  power 
and  authority  to  "  manage  the  affairs  of  the  said  corporation  and 
parish  of  Trinity  Church." 

And  this  church  is  declared  the  sole  and  only  parish  church  in 
the  city  of  New  York. 

The  Act  of  April  17, 1784,  is  entitled  "  An  Act  for  making  such 
Alterations  in  the  Charter  of  the  Corporation  of  Trinity  Church, 
as  to  render  it  more  conformable  to  the  constitution  of  the  State." 
And  the  title  of  the  Act  of  March  10,  1788,  is  "  An  Act  to  enable 
the  Corporation  of  Trinity  Church  in  the  City  of  New  York,  to 
assume  the  name  therein  mentioned."  The  title  of  the  Act  of  1814 
is  similar. 


308  Appendix. 

It  seems  an  irresistible  conclusion,  that  the  inhabitants  of  the  city 
of  New  York  in  communion  of  the  Church  of  England  aforesaid, 
must  have  been  in  the  communion  (members)  of  Trinity  Church, 
the  sole  parish  church.  There  could  not  have  been  meant  an  ideal 
abstract  union  with  the  church  as  a  spirituality.  The  moment  we 
comprehend  how  completely  communion,  in  the  English  sense,  is 
personal  local  connection  with  a  particular  place  of  worship,  all  be- 
comes clear  and  definite.  Inhabitants  of  New  York,  professing  the 
faith  and  polity  of  the  Church  of  England,  were  parishioners. 
Parishioners  involved  the  idea  and  fact  of  a  parish  church.  There 
was  but  one  such  in  the  city.  That  was  Trinity  Church  and  its 
chapels.  Parishioners  were  necessarily  members  of  Trinity  Church 
or  of  its  chapels.  To  a  great  extent  members  of  the  chapels  were 
members  of  the  mother  church. 

The  second  section  defines  the  persons  qualified  to  vote.  There 
is  not  a  single  qualification  among  those  specified,  which  was  not 
equally  essential  and,  at  least,  as  plainly  prescribed  by  the  charter 
of  1697,  or  could  have  been  defined  and  prescribed  by  a  by-law 
of  the  corporation.  "  INIembers  of  the  congregation  of  Trinity 
Church  or  any  of  its  chapels,"  is  neither  more  perspicuous  or  dis- 
criminating than  "  inhabitants  of  the  city,  parishioners  of  Trinity 
Church''  with  the  known  obligations  flowing  from  the  term. 

The  substance  of  the  provision  as  to  being  members  for  a  year, 
could  have  been  adopted  in  a  by-law  requiring  stated  attendance 
on  public  worship  for  that  time.  The  limitation  to  male  persons 
of  full  age  is  a  rule  of  the  common  law.  (Grant  on  Corporations, 
p.  0.) 

The  third  section  confirms  grants  of  land  before  made  by  Trinity 
Church,  or  that  might  thereafter  be  made  to  any  religious  society 
then  or  thereafter  to  be  incorporated,  the  value  not  to  exceed  the 
limit  of  their  charter. 

Now  the  charter  had  conferred  unlimited  power  of  conveying  the 
lands  held  by  the  church.  Of  course  this  power  was  subordinate  to 
any  trust  or  purpose  for  which  it  may  have  acquired  the  particular 
land.  We  have  seen  that  in  1798,  a  conveyance  had  been  made 
with  the  sanction  of  Alexander  Hamilton  and  Richard  Harison,  to 
trustees  for  St.  Mark's  Church,  and  when  that  church  was  incorpo- 
rated, those  trustees  conveyed. 

A  statute  created  restriction  upon  the  common-law  right  to 
alien,  by  rendering  the  assent  of  the  Chancellor  necessary.*  It  is 
1  First  adopted  in  1787 ;  revised  1813.    2  R.  L.  chap.  60. 


Appe7idix.  309 

needless  to  enter  into  the  question  whether  this  restriction  was  ap- 
plicable to  the  case  of  Trinity  Church.  The  sanction  to  such  con- 
veyances is  perfectly  clear. 

But  the  great  mass  of  the  property  of  the  church  is  derived  from 
the  grant  of  1705.  That  grant  recited  the  Act  of  1704,  authorizing 
the  corporation  to  take  lands  for  the  benefit  of  the  said  church,  and 
other  pious  uses  ;  and  the  habendum  was,  to  "  the  Rector  and 
Inhabitants  of  the  City  of  New  York  in  communion  with  the  Church 
of  England  as  by  law  established,  and  their  successors  forever." 

So  far  as  such  property  is  concerned,  there  can  be  no  doubt  that 
transfers  to  incorporations  of  the  Episcopal  Church  within  the  city, 
were  legal.  In  my  opinion  transfers  of  such  property,  or  its  pro- 
ceeds, to  or  for  the  use  of  churches,  or  any  other  pious  purposes, 
out  of  the  city,  are  unwarranted. 

The  fourth  section  of  the  act  relates  to  the  separation  and  in- 
corporation of  St.  George's  Chapel,  then  a  church.  It  recites,  that 
doubts  had  been  entertained  as  to  the  legality  of  the  act ;  confirms 
it,  and  sanctions  the  conveyance  of  the  property. 

I  look  upon  this  provision  as  utterly  useless,  and  by  suggesting 
the  doubt,  actually  mischievous.  There  cannot  be  a  point  of  ec- 
clesiastical law  more  capable  of  demonstration,  than  the  legality  of 
the  proceedings  as  to  St.  George's  Church,  under  the  charter.  If 
the  transfer  of  the  land  required  any  thing  further,  the  third  section 
of  this  act  was  enough. 

The  fifth  section  empowered  the  vestry  of  Trinity  Church  to  set 
apart,  as  a  separate  church,  any  of  the  churches  or  chapels  which 
formed  part  of  the  corporation,  with  the  assent  of  a  majority  of  the 
persons  entitled  to  vote,  belonging  to  the  chapel  to  be  set  apart. 
They  shall  then  cease  to  be  members  of  Trinity  Church  ;  may 
become  separately  incorporated  ;  and  may  receive  from  Trinity 
Church  any  grant  of  real  or  personal  estate  for  its  separate  use. 

This  memorable  statute  so  coveted,  so  assailed,  and  so  resolutely 
defended,  appears  to  me  to  be  an  act  enfeebling  the  legal  position 
of  Trinity  Church,  rather  than  fortifying  it.  With  perhaps  the 
exception  of  the  name,  and  the  power  to  transfer  real  estate,  every 
thing  enacted  was  secured  by  the  charter,  and  its  essential  inferen- 
tial power.  That  charter,  secured  by  the  Constitution  of  1777,  was 
a  most  sure  guaranty.  Had  there  been  a  legislative  invasion  of 
rights  thus  strengthened,  the  tribunals  of  justice  would  have  re- 
dressed it. 

But  the  statute,  in  the  points  to  which  it  extends,  forms  now  the 


310  Apjyendix. 

guide  of  the  action  of  Trinity  Churcli.  It  has  withstood  a  fierce  and 
persevering  assault,  and  remains  unshaken.  But  if  repealed,  the 
church  could  fall  back  upon  a  charter  all  sufficient  for  her  security, 
and  capable  of  development  in  legal  conser\'ative  restrictions.  The 
whole  city  of  New  York  would  be  again,  without  a  question,  as 
perhaps  it  is  even  now,  her  parish,  except  where,  by  her  consent  or 
acquiescence,  she  has  sanctioned  the  organization  of  independent 
churches  and  cures.  Every  dweller  of  the  city,  not  allied  to  such 
independent  churches,  whose  good  lot  it  was  to  profess  the  faith 
and  godly  order  of  the  Episcopal  Church,  would  be  her  parish- 
ioner—to be  nurtured  at  the  mother  altar,  or  the  altar  of  a  daughter 
chapel ;  and  her  office  and  mission  would  be,  to  rear  such  altars  in 
all  the  waste  places  of  her  domain.  She  received  the  most  admira- 
ble and  comprehensive  of  charters  ;  almost  contemporaneously  she 
was  endowed  with  a  munificent  grant  of  property.  It  seems  as  if 
she  was  thus  appointed  and  designed,  as  the  instrument  to  preserve 
and  to  spread,  in  this  city,  the  faith  of  Saints,  reclaimed  and  restored 
in  the  true  Church  of  England,  and  transplanted  to  our  shore. 


APPENDIX    A. 

ACT  OF  ]V£AY  9,  1868,  CHAPTER  803. 

An  Act  to  amend  the  Acts  to  provide  for  the  Incorporation  of  Religious  Societies,  so  far 
as  the  same  relate  to  Churches  iti  connection  with  the  Protestant  Episcopal  ChurcJt. 
Passed  May  9,  1868. 

The  People  of  the  State  of  New  York,  represented  in  Senate 
and  Assembly,  do  enact  as  follows  :  — 

§  1.  The  first  section  of  the  act  entitled  "  An  Act  to  provide  for 
the  incorporation  of  Religious  Societies,"  passed  April  5,  1813,  is 
hereby  amended  so  as  to  read  as  follows :  — 

1.  It  shall  be  lawful  for  not  less  than  six  male  persons,  of  full 
age,  belonging  to  any  church  or  congregation  in  communion  with 
the  Protestant  Episcopal  Church  in  this  State,  not  already  incorpor- 
ated, to  meet  at  any  time  at  the  usual  place  of  public  worship  of 
such  church  or  congregation,  for  the  purpose  of  incorporating  them- 
selves under  this  act. 

2.  A  notice  of  such  meeting,  specifying  its  object,  and  the  time 
and  place  thereof,  shall  be  publicly  read  in  the  time  of  morning 
service,  on  two  Sundays  next  previous  thereto,  by  the  rector  or  offi- 
ciating minister,  or,  if  there  be  none,  by  any  other  person  belong- 
ing to  such  church  or  congregation  ;  and  shall  also  be  posted  in  a 
conspicuous  place  on  the  outside  door,  near  the  main  entrance  to 
such  place  of  worship. 

3.  The  rector,  or  if  there  be  none,  or  he  be  necessarily  absent, 
then  one  of  the  church-wardens  or  vestrymen,  or  any  other  person, 
called  to  the  chair,  shall  preside  at  such  meeting,  and  shall  receive 
the  votes. 

4.  The  persons  entitled  to  vote  at  such  meeting  shall  be  the  male 
persons  of  full  age  belonging  to  the  church  or  congregation,  qual- 
ified as  follows,  and  none  other  :  — 

First.  Those  who  have  been  baptized  in  the  Protestant  Episco- 
pal Church,  or  who  have  been  received  therein,  either  by  the  right 
of  confirmation,  or  by  receiving  the  holy  communion  ;  or. 

Second.     Those  who  have  purchased,  and  for  not  less  than  twelve 


312  Appendix. 

months  next  prior  to  such  meeting  have  owned,  a  pew  or  seat  in 
such  church ;  or  who,  during  the  same  period  of  time,  have  hired 
and  paid  for  a  pew  or  seat  in  such  church  ;  or  who,  during  the 
whole  period  aforesaid,  have  been  contributors  in  money  to  the 
support  of  such  church. 

5.  The  persons  so  qualified  shall,  at  such  meeting,  by  a  majority 
of  votes,  determine  — 

First.  The  name  or  title  by  which  such  church  or  congregation 
shall  be  known  in  law. 

Second.  On  what  day  in  Easter-week  an  annual  election  for 
church-wardens  and  vestrymen  shall  thereafter  take  place. 

Third.  What  number  of  vestrymen,  not  less  than  four  or  more 
than  eight,  shall  annually  be  elected,  and  shall,  together  with  the 
rector  (if  there  be  one),  and  the  two  church-wardens,  constitute 
the  vestry  of  the  church. 

Fourth.  And  shall,  by  a  majority  of  votes,  elect  two  church- 
wardens and  the  number  of  vestrymen  that  it  shall  have  been 
determined  are  to  be  annually  elected,  which  church-wardens  and 
vestrymen  thus  elected  shall  serve  until  the  next  regular  election. 

6.  The  polls  shall  continue  open  for  one  hour,  and  longer,  in  the 
discretion  of  the  presiding  officer,  or  if  required,  by  the  vote  of  a 
majority  of  voters  present. 

7.  The  presiding  officer,  together  with  two  other  persons,  shall 
make  a  certificate,  under  their  hands  and  seals,  of  — 

First.     The  church-wardens  and  vestrymen  so  elected. 

Second.  Of  the  day  in  Easter-week  so  fixed  for  the  annual  elec- 
tion of  their  successors. 

Third.  Of  the  number  of  vestrymen  (not  less  than  four  nor 
more  than  eight)  so  determined  upon  to  be  annually  elected  to 
constitute  part  of  the  vestry. 

Fourth.  Of  the  name  or  title  by  which  such  church  or  congre- 
gation shall  be  known  in  law. 

Which  certificate  being  duly  acknowledged,  or  the  execution  and 
acknowledgment  thereof  being  duly  proven  before  any  officer  au- 
thorized to  take  the  acknowledgment  or  proof  of  deeds  or  con- 
veyances of  real  estate,  to  be  recorded  in  the  county  where  such 
church  or  place  of  worship  of  such  congregation  shall  be  situated, 
shall  be  recorded  by  the  clerk  of  such  county,  or  by  the  officer 
whose  duty  it  is,  or  may  hereafter  be  made,  to  record  such  instru- 
ments in  the  county  in  which  such  church  or  place  of  worship  may 
be  situated,  in  a  book  to  be  by  him  kept  for  such  purpose. 


Appendix.  313 

8.  The  church-wardens  and  vestrymen  so  elected,  and  their  suc- 
cessors in  office,  of  themselves  (but  if  there  be  a  rector,  then  to- 
gether with  the  rector  of  such  church  or  congregation),  shall  form 
a  vestry,  and  shall  be  the  trustees  of  such  church  or  congregation ; 
and  they  and  their  successors  shall  thereupon  by  virtue  of  this  act, 
be  a  body  corporate,  by  the  name  or  title  expressed  in  such  certifi- 
cate. 

9.  The  male  persons  qualified  as  aforesaid,  provided  they  shall 
also  have  belonged  to  such  church  or  congregation  for  twelve 
months  immediately  preceding,  shall,  in  every  year  thereafter,  on 
the  day  in  P2aster-week  so  fixed  for  that  purpose,  elect  two  church- 
wardens, and  as  many  vestrymen  (not  less  than  four  nor  more  than 
eight)  as  shall  have  been  legally  determined  to  constitute  part  of 
the  vestry. 

10.  Notice  shall  be  given  of  such  election  by  the  rector,  if  there 
be  one,  or  if  there  be  none,  or  he  be  absent,  by  the  officiating  min- 
ister, or  by  a  church-warden,  for  two  Sundays  next  previous  to  the 
day  so  fixed,  in  the  time  of  divine  service. 

11.  Whenever  a  vacancy  in  the  board  so  constituted  shall  happen, 
by  death  or  otherwise,  the  vestry  shall  order  a  special  election  to 
supply  such  vacancy ;  of  which  notice  shall  be  given  in  the  time  of 
divine  service,  at  least  ten  days  previous  thereto. 

12.  The  notice  of  any  election,  stated  or  otherwise,  shall  specify 
the  place,  day,  and  hour  of  holding  the  same.  The  provisions  con- 
tained in  the  preceding  sixth  clause  shall  apply  to  all  elections. 

13.  An  election  to  supply  a  vacancy,  and  also  the  stated  annual 
election,  shall  be  holden  immediately  after  morning  service  ;  and  at 
all  such  elections,  the  rector,  or  if  there  be  none,  or  he  be  absent, 
one  of  the  church-wardens  selected  for  the  purpose  by  a  majority 
of  the  duly  qualified  voters  present ;  or  if  no  warden  be  present,  a 
vestryman  (selected  in  like  manner)  shall  preside,  and  receive  the 
votes  of  the  electors,  and  be  the  returning  officer  ;  and  shall  enter 
the  proceedings  in  the  book  of  the  minutes  of  the  vestry,  and  sign 
his  name  thereto,  and  offer  the  same  to  as  many  electors  present  as 
he  shall  think  fit,  to  be  by  them  also  signed  and  certified. 

14.  The  church-wardens  and  vestrymen  chosen  at  any  of  the 
said  elections,  shall  hold  their  offices  until  the  expiration  of  the  year 
for  which  they  shall  be  chosen,  and  until  others  are  chosen  in  their 
stead ;  and  shall  have  power  to  call  and  induct  a  rector  to  such 
church  or  congregation  as  often  as  there  shall  be  a  vacancy  therein, 
and  to  fix  his  salary  or  compensation. 


314  Appendix. 

15.  No  board,  or  meeting  of  such  vestry  shall  be  held,  unless  at 
least  three  days'  notice  thereof  shall  be  given  in  writing,  under  the 
hand  of  the  rector  or  of  one  of  the  church-wardens ;  except  that 
for  the  first  meeting  after  an  election,  twenty-four  hours'  notice 
shall  be  sufficient ;  and  no  such  board  shall  be  competent  to  trans- 
act any  business  unless  the  rector,  if  there  be  one,  and  at  least  one 
of  the  church-wardens,  and  a  majority  of  the  vestrymen  be  present. 
But  if  the  rector  be  absent  from  the  State,  and  shall  have  been  so 
absent  for  over  four  calendar  months,  or  if  the  meeting  has  been 
called  by  the  rector,  and  he  be  absent  therefrom,  the  board  shall 
be  competent  to  transact  all  business  if  there  be  present  one  church- 
warden, and  a  majority  of  the  vestrymen  ;  except  that  in  the  ab- 
sence of  the  rector,  no  measure  shall  be  taken  for  effecting  a  sale 
or  disposition  of  the  real  property,  nor  may  any  sale  or  disposition 
of  the  capital  or  principal  of  the  personal  estate  of  such  corpora- 
tion be  made,  nor  any  act  done  which  shall  impair  the  rights  of 
such  rector. 

Ifi.  The  rector,  if  there  be  one,  and  if  not,  then  the  church- 
warden present,  or  if  both  the  church-wardens  be  present,  then  the 
church-warden  who  shall  be  called  to  the  chair  by  a  majority  of 
votes,  shall  preside  and  have  the  casting  vote. 

17.  Whenever  any  corporation,  organized  under  the  provisions 
of  this  act,  shall  deem  it  for  the  interest  of  such  corporation  to 
change  the  number  of  its  vestrymen,  it  shall  and  may  be  lawful  for 
such  corporation  to  change  the  same,  provided  that  the  number  of 
such  vestrymen  shall  not  thereby  be  less  than  four  or  more  than 
eight.  And  in  order  to  effect  such  change,  the  same  shall  be  au- 
thorized and  approved  by  the  vestry  at  a  regular  meeting  thereof; 
and  shall  then  at  the  next  stated  annual  election  for  wardens  and 
vestrymen  be  submitted  to,  and  ratified  by,  a  majority  of  the  votes 
of  all  the  qualified  voters  voting  at  such  election ;  notice  of  which 
proposed  change,  and  that  the  same  will  be  submitted  for  ratifica- 
tion at  such  election,  shall  be  given  at  the  same  time,  and  in  the 
same  manner  as  is  required  for  notice  of  the  said  election  ;  if  such 
change  be  thus  ratified,  a  certificate  shall  be  made  setting  forth  the 
resolution  of  the  vestry,  and  the  proceedings  to  ratify  the  same, 
together  with  the  fact  of  the  notice  being  given  as  required,  and 
shall  be  acknowledged  or  proved  and  recorded  in  the  same  manner 
as  is  required  for  the  original  certificate  of  organization  ;  and  there- 
upon the  number  of  vestrymen  to  constitute  a  part  of  the  vestry 
of  such  corporation,  shall  be  such  as  shall  be  fixed  by  the  proceed- 


Appendix.  315 

ings  to  effect  such  change.  But  such  change  shall  not  take  effect 
or  be  operative  until  the  certificate  above  mentioned  shall  have 
been  duly  recorded. 

§  2.  The  provisions  of  the  ninth,  tenth,  eleventh,  twelfth,  thir- 
teenth, fourteenth,  fifteenth,  sixteenth,  and  seventeenth  clauses  of 
section  one  of  this  act  shall  apply  to  any  church  or  corporation  in 
communion  with  the  Protestant  Episcopal  Chvu'ch  in  this  State 
heretofore  incorporated  under  the  act  hereby  amended,  or  imder 
any  of  the  acts  amending  the  same,  or  under  the  several  acts  to 
provide  for  the  incorporation  of  religious  societies,  passed  April  6, 
1784  ;  March  27, 1801  ;  or  the  Act  for  the  Relief  of  the  Protestaut 
Episcopal  Church  in  the  State  of  New  York,  passed  March  17, 1795 ; 
or  by  any  special  charter  made  or  granted  before  or  after  July  4, 
1776,  whereof  the  vestry,  at  a  regular  meeting,  shall  by  vote  de- 
termine to  adopt  the  same  ;  and  such  vote  shall,  at  the  next  ensuing 
stated  annual  election  for  wardens  and  vestrymen,  be  submitted  to, 
and  ratified  by,  a  majority  of  the  votes  of  all  the  qualified  voters 
voting  at  such  election,  notice  of  such  vote  of  the  vestry,  and  of 
the  proposed  submission  of  the  same  for  ratification,  having  been 
given  at  the  same  time  and  in  the  same  manner  as  is  required  by 
the  tenth  clause  of  the  first  section  of  this  act  for  notice  of  election. 
"But  such  adoption  shall  not  take  effect,  or  be  operative,  until  a  cer- 
tificate embodying  a  true  copy  of  the  resolution  of  the  vestry,  as 
entered  upon  their  minutes,  and  the  proceedings  to  ratify  the  same, 
together  with  the  fact  of  the  notice  being  given,  as  required,  shall 
have  been  acknowledged  or  proved,  and  shall  be  recorded,  as  is 
required  by  the  foregoing  seventh  clause  of  section  one,  for  the  cer- 
tificate of  incorporation. 

§  3.  The  first  section  of  the  act  passed  March  5,  1819,  entitled 
"  An  Act  to  amend  the  Act  entitled,  '  An  Act  to  provide  for  the 
Incorporation  of  Religious  Societies,' "  is  hereby  repealed. 

§  4.  The  third  section  of  the  act  passed  February  15,  1826,  en- 
titled "  An  Act  to  amend  an  Act  entitled, '  An  Act  to  provide  for  the 
Incorporation  of  Religious  Societies,'  "  passed  April  5,  1813,  shall 
not  apply  to  any  church  or  congregation  in  connection  with  the 
Protestant  Episcopal  Church  in  this  State. 

§  5.  All  acts  and  parts  of  acts  inconsistent  with  the  provisions 
of  this  act  are  hereby  repealed. 


316  Appendix. 

NOTES  TO  THE  ACT  OF  MAY,  1868. 

§  1.  Clause  1.  The  alteration  is  in  requiring  six  male  persons 
belonging  to  a  church  or  congregation  in  communion  with  the  Prot- 
estant Episcopal  Church,  in  order  to  incorporate. 

§  1.  Clause  2.  An  officiating  minister  may  give  the  notice.  A 
copy  is  to  be  posted  in  a  conspicuous  place  on  the  outside  door,  near 
the  main  entrance.     See  the  form,  Appendix  No.  2. 

§  1.  Clause  4.  Six  male  persons  of  full  age  must  be  present  at 
the  election.  The  qualifications  of  voters  are  defined.  First,  those 
who  have  been  baptized  in  the  Pi'otestant  Episcopal  Church,  or 
been  received  therein  by  being  confirmed,  or  receiving  the  holy 
communion.  Thus,  in  strictness,  the  ecclesiastical  qualifications 
are  purely  those  of  membership  of  the  Protestant  Episcopal 
Church. 

And  as  to  this  class,  there  is  no  period  of  previous  belonging  to 
the  church  prescribed.  It  results,  however,  that  they  must  have 
belonged  over  the  time  which  will  allow  the  notice  for  two  suc- 
cessive Sundays  to  be  given. 

The  next  class  of  voters  are  clearly  defined.  Ownership  of  a 
pew  or  seat,  or  hiring  and  paying  for  the  same,  or  contribution  in 
money  is  required.  But  in  each  case  this  must  have  lasted  for  not 
less  than  twelve  months  next  before  the  election. 

§  1.  Clause  3.  Instead  of  eight  vestrymen  the  number  may  be 
not  less  than  four  nor  more  than  eight. 

Instead  of  the  clause,  "shall  hold  their  office  until  the  expiration 
of  the  year  and  until  others  be  chosen  in  their  stead,"  the  provision 
is,  ".shall  serve  until  the  next  regular  election." 

§  1.  Clause  6  is  new.  The  polls  must  continue  open  one  hour. 
The  presiding  officer  may  extend  the  time,  or  a  majority  of  voters 
present  may  require  it  to  be  done. 

§  1.  Clause  7.  The  certificate,  besides  what  was  before  required, 
must  state  the  number  of  vestrymen  determined  upon.  See  the 
form.  Appendix  No.  3. 

§  1.  Clause  9.  The  provision  as  to  belonging  to  such  church  for 
twelve  months  previous  to  all  elections  after  the  first,  is  made  very 
definite.  No  possible  difference  can  now  exist  as  to  this  point,  for 
churches  hereafter  organized.  It  has  been  shown,  I  trust,  that  it  is 
the  law  now  for  all  existing  incorporated  churches.  Such  length 
of  time  of  belonging,  that  is,  stated  attendance,  is  requisite  in  every 
case. 


Appendix.  317 

§  1.  Clause  15.  The  alteration  of  the  law  contained  in  this 
clause  is  important.  If  the  rector  be  absent  from  the  State,  and 
for  over  four  calendar  months  ;  or,  if  the  meeting  be  called  by  him, 
and  he  be  voluntarily  absent,  the  vestry,  composed  of  one  warden 
and  a  majority  of  vestrymen,  may  transact  business,  except  they 
may  not  do  any  thing  to  effect  a  sale  or  disposition  of  real  prop- 
erty, or  the  principal  or  capital  of  personal  estate,  or  any  thing  im- 
pairing the  rights  of  the  rector. 

§  1.  Clause  17.  This  provision  is  new,  and  enables  the  vestry, 
but  with  the  assent  of  the  qualified  voters,  to  change  the  number 
of  vestrymen  originally  fixed  upon. 

§  2.  Under  this  section,  existing  incorporations  may  avail  them- 
selves of  the  provisions  of  the  act,  and  be  governed  by  them.  Cer- 
tainly many  advantages  would  arise  from  a  uniform  law  governing 
every  church  incorporated  throughout  the  State,  and  the  few  new 
points  arising  under  the  new  law  would  soon  be  settled.  Some 
experience  of  its  practical  working  will  probably  be  required  before 
it  is  adopted  by  corporations  organized  before  its  passage. 

§  3.  This  repealed  the  first  section  of  the  Act  of  1819,  which 
defined  the  qualifications  of  voters  at  the  first  election,  now  pro- 
vided for  in  the  fourth  clause  of  section  1. 

§  4.  The  third  section  of  the  Act  of  February  15,  1826,  is  a 
section  authorizing  the  qualified  voters  of  a  religious  society  to 
change  the  day  of  the  annual  election  before  appointed.  This,  it 
is  declared,  shall  not  be  applicable  to  churches  of  the  Protestant 
Episcopal  communion. 

§  5.  All  acts  and  parts  of  acts  inconsistent  with  these  provisions, 
are  repealed. 


APPENDIX    B 

CILVPTEE   471. 


An  Act  for  the  Relief  of  certain  Religious  Societies  in  the  City  and  County  of  New 
York,  and  in  the  Counties  of  Kings  and  of  Westchester.     Passed  April  29,  1868. 

Whereas  several  religious  societies,  whose  places  of  worship 
are  in  the  city  of  New  York,  or  in  the  counties  of  Kings,  or  of  West- 
chester, seeking  to  incorporate  themselves  under  the  provisions  of 
the  act  entitled  "  An  Act  to  provide  for  the  Incorporation  of  Relig- 
ious Societies,"  passed  April  5,  1813,  or  of  the  several  acts  amend- 
ing the  same,  have  through  mistake,  caused  the  certificates  provided 


318  Appendix. 

for  by  the  said  act,  to  be  recorded  in  the  office  of  the  clerk  of  the 
city  and  county  of  New  York,  or  of  the  clerk  of  said  county  of 
Kings,  or  of  the  said  county  of  Westchester,  instead  of  the  office 
of  register  of  the  city  and  county  of  New  York,  or  of  the  register 
of  the  said  counties  of  Kings  or  of  Westchester  respectively  ; 
therefore,  the  people  of  the  State  of  New  York,  represented  in 
Senate  and  Assembly  do  enact  as  follows  : 

§  1.  The  recording  of  every  such  certificate  alluded  to  in  the 
foregoing  preamble  in  either  of  the  said  offices  of  the  clerk  of  the 
city  and  county  of  New  York,  or  of  the  clerk  of  the  county  of 
Kings,  or  of  the  clerk  of  the  county  of  Westchester,  prior  to  the 
passage  of  this  act,  shall  be  regarded  and  construed,  and  such  re- 
cording is  hereby  declared  to  be  of  the  same  validity,  force  and 
effect  as  would  have  been  the  recording  of  such  certificate  in  the 
office  of  the  register  of  the  city  and  county  of  New  York,  or  of 
the  register  of  the  county  of  Kings,  or  of  the  register  of  the 
county  of  Westchester,  respectively.  And  every  act,  deed,  matter 
and  thing  done  or  performed  by  every  such  religious  society,  since 
the  recording  of  its  certificate  in  the  office  of  either  of  the  said 
clerks  of  the  city  and  county  of  New  York,  or  of  the  county  of 
Kings,  or  of  the  county  of  Westchester,  is  hereby  ratified,  con- 
firmed and  declared  to  be  as  valid  in  all  respects,  as  if  the  said  cer- 
tificate had  been  properly  and  appropriately  recorded  in  the  office 
of  the  register  of  the  city  and  county  of  New  York,  or  of  the  reg- 
ister of  the  county  of  Kings,  or  of  the  register  of  the  county  of 
Westchester ;  but  this  act  shall  not  affect  any  suit  or  proceeding 
already  commenced,  arising  out  of  such  original  mistake. 

§  2.  This  act  shall  take  effect  immediately. 

By  an  Act  of  March  12, 1852  (Laws,  chap.  83),  a  register  was  to 
be  elected  for  the  county  of  Kings,  and  by  section  7,  all  that  part 
of  the  duty  of  the  clerk  of  the  countj^  which,  in  the  city  of  New 
York,  was  required  to  be  done  by  the  register  of  deeds  in  such  city, 
shall  be  done  and  performed  by  the  register  of  deeds  in  and  for 
the  county  of  Kings,  and  the  county  clerk  was  prohibited  from 
performing  any  of  the  duties  devolved  upon  such  register. 

And  by  an  Act  of  April  16,  1858  (Laws,  chap.  2!)3),  a  register 
was  to  be  elected  for  the  county  of  Westchester,  and  section  5  is 
the  same  as  section  7  of  the  Act  of  1852,  as  to  the  register  in  Kings 
County. 


Appendix.  319 

APPENDIX    C  — Page  197. 

OPINION    UPON    RECORDING    PAPERS    UPON    A     CHANGE    OF    NAME 
AND    IN    THE    REGISTER'S    OFFICE    GENERALLY. 

By  the  Act  of  June  4,  1853,  chap.  323,  a  religious  society  may 
present  a  petition  for  a  change  of  name  on  the  grounds  specified  in 
the  manner  prescribed  by  the  act  entitled  "  An  Act  to  authorize 
Persons  to  change  their  Names,  passed  December  14,  1847,  and 
upon  fully  complying  with  the  requirements  of  said  act,  shall  be 
known  by  such  new  and  assumed  name  and  by  no  other." 

By  that  Act  of  December  14,  1847,  chap.  464,  within  ten  days 
after  an  order  is  granted  for  a  change  of  name,  a  copy  must  be 
published  in  one  newspaper  in  the  county,  and  within  twenty  days 
after  the  order,  the  petition  and  verifications  thereof,  the  order,  and 
an  affidavit  of  the  publication,  must  be  filed  and  recorded  in  the 
office  of  the  clerk  of  the  county. 

By  an  Act  of  March  17,  1860  (Laws,  chap.  80),  the  application 
for  a  change  of  name  of  persons  was  directed  to  be  made  to  the 
county  courts,  and  in  New  York  to  the  Court  of  Common  Pleas 
instead  of  the  county  judge,  or  a  justice  of  the  Supreme  Court ; 
and  the  clerks  of  the  counties  (except  of  the  county  of  New  York) 
and  the  clerk  of  the  Court  of  Common  Pleas  were  to  make  a 
return  of  the  changes  of  names  made  under  the  act. 

Until  the  year  1854,  the  clerk  of  the  county  of  New  York,  was 
the  clerk  of  the  Court  of  Common  Pleas.  By  an  Act  of  12th  day 
of  April,  1854,  chap.  198,  the  offices  were  separated.  The  clerk's 
office  of  the  Court  of  Common  Pleas  was  established,  and  the 
county  clerk  of  the  city  and  county  of  New  York  was  to  deliver  to 
such  clerk,  all  books,  property,  records,  and  papers,  appertaining  to 
said  Court  of  Common  Pleas. 

The  amendment  of  1860,  making  changes  in  some  particulars  in 
the  Act  of  1847,  in  respect  to  the  changing  of  names  of  individu- 
als, cannot  affect  the  provisions  of  the  Act  of  1853,  embodying  and 
regulating  the  proceedings  for  changing  the  names  of  religious 
corporations,  according  to  the  Act  of  1847.  The  provisions  of  that 
act  must  be  the  guide  and  the  decisive  guide. 

It  would  appear  to  follow  that  upon  the  change  of  names  of  in- 
dividuals, the  papers  and  proceedings  are  to  be  filed  in  the  office 
of  the  clerk  of  the  Common  Pleas  ;  but  even  if  that  is  a  just  result, 
it  is  produced  by  the  statute  of  1854,  and  cannot  create  a  new  rule 


320  Appendix. 

as  to  the  proceedings  for  changing  the  names  of  religious  bodies, 
prescribed  by  tlie  Act  of  1847,  and  never  expressly  repealed,  nor, 
by  any  just  reasoning,  impliedly  repealed.  I  luiderstand  the  prac- 
tice, as  to  changes  of  the  names  of  individuals,  continues  to  be  to 
file  and  record  still  in  the  county  clerk's  oifice. 

The  legislation,  therefore,  thus  far  stated,  imports  and  declares, 
that  the  proceedings  and  papers  on  an  application  to  change  the 
corporate  name  of  a  religious  society,  must  be  filed  and  recorded  in 
the  office  of  the  clerk  of  the  county  where  the  place  of  worship  is 
situated. 

But  it  is  urged,  and  with  considerable  force,  that  the  provisions 
of  law  respecting  the  register's  office,  supersede  these  enactments, 
and  require  a  recording  in  that  office. 

The  Act  of  1813,  for  incorporating  religious  societies,  was  passed 
April  f\  1813,  and  directed  the  certificate  to  be  recorded  by  the 
clerk  of  the  county  where  the  place  of  worship  was  located.  The 
act  to  reduce  the  laws  relating  to  the  city  of  New  York  into  one 
act,  was  passed  April  9,  1813.  This  contained  the  provisions,  not 
merely  directing  deeds  and  writings  to  be  recorded  in  the  register's 
office,  but  prohibiting  the  county  clerks  from  recording  them.  So 
upon  general  principles  the  latter  act  would  supersede  the  former* 
But  by  an  Act  of  February  13,  1813,  chap.  202,  the  revised  acts 
passed  at  that  session  were  not  to  take  effect  until  December  1, 
1813,  notwithstanding  anything  in  them  to  the  contrary. 

Hence  these  various  provisions  must  be  taken  as  declarations  of 
the  legislative  will  at  one  and  the  same  period ;  and  we  must  rec- 
oncile them,  if  it  be  possible.  That  can  be  done  by  reading  them 
thus:  Deeds  and  writings  shall  be  recorded  by  the  clerk  of  the 
county  where,  etc. ;  except  that  in  the  city  of  New  York,  this  shall 
be  done  by  the  register  of  the  city.  So  far  as  certificates  of  incor- 
poration of  religious  bodies  are  concerned,  the  Act  of  April  21, 
1863,  chap.  287,  and  the  Act  of  April  29,  1868,  chap.  471,  are  plain 
legislative  declarations,  that  they  were  not  legally  recorded  in  the 
clerk's  office,  but  should  have  been  in  the  register's.  Both  acts 
legalized  the  corporations  which  had  made  the  mistake  in  recording. 

The  160th  section  above  cited,  restrains  the  clerk  of  the  county 
from  registering  mortgages  and  recording  deeds,  conveyances,  and 
other  writings,  which  are  by  law,  or  hereafter  may  be,  directed  and 
required  to  be  recorded  or  registered. 

When  the  direction  of  a  law  is  merely  that  a  particular  writing 
be  filed  in  the  county  clerk's  office,  the  case  does  not  fall  within  the 


Appendix.  321 

prohibition.  Thus  by  an  Act  of  1846,  chap.  2,  §  5,  the  bond  of  an 
auctioneer  is  to  be  filed  with  the  clerk  of  the  city  and  county  of 
New  York.  So  under  the  Act  as  to  assignments  by  debtors  (Laws, 
April  13,  1860,  chap.  348),  the  bond  to  be  given  by  the  assignee  is 
to  be  filed  in  the  office  of  the  county  clerk  where  the  assignment  is 
recorded,  the  inventory  is  to  be  filed  in  the  same  office.  But  fur- 
ther, there  are  several  acts  which  require  the  registering  of  writings, 
and  expressly  directs  this  to  be  done  in  the  county  clerk's  office. 

Such  is  the  case  in  the  Act  for  registering  the  names  of  members 
of  a  continuing  firm  (April  17,  1854,  chap.  400,  §  23).  So  in  the 
Act  as  to  debtors,  assignments  of  April  13, 1860,  before  cited.  The 
assignment  shall  be  recorded  in  the  clerk's  office  of  the  county 
where  such  debtor  resides. 

So  by  the  Act  of  April  27,  1847,  for  the  incorporation  of  rural 
cemeteries  (chap.  133),  the  certificate  prescribed  in  section  2,  is  to 
be  recorded  in  the  clerk's  office  of  the  county  where  the  meeting  is 
held,  upon  which  the  association  becomes  incorporated.  While  in 
an  Act  of  April  11,  1862,  chap.  215,  the  consent  made  necessary 
for  a  mortgage  of  a  burying-ground,  is  to  be  proved  or  acknowl- 
edged in  the  same  manner  as  deeds,  and  shall  thereupon  be  re- 
corded in  the  office  of  the  register  of  the  city,  or  clerk  of  the  county 
in  which  such  burying-ground  is  situated. 

By  an  Act  of  April  29,  1833,  chap.  273,  chattel  mortgages  were 
to  be  filed  in  the  city  of  New  York  in  the  office  of  the  register  of 
such  city. 

It  seems  to  me  that  in  order  to  harmonize  these  various  provis- 
ions of  law,  we  must  read  the  159th  and  160th  sections  of  the  Act 
of  1813  to  reduce  the  laws  in  relation  to  the  city  of  New  York, 
etc.,  in  this  manner. 

That  whenever  a  writing  is  directed  to  be  registered  or  recorded 
and  the  place  is  not  designated ;  or  designated  as  to  be  in  the 
proper  office  for  registering  or  recording ;  or  to  be  registered  or 
recorded  in  the  county  where  the  place  of  business,  etc.  is  located ; 
in  all  such  and  similar  cases,  the  register's  office  in  New  York  is  the 
only  proper  place.  Where  the  registering  or  recording  is  expressly 
directed  by  a  subsequent  statute  to  be  made  elsewhere,  as  in  the 
office  of  county  clerk,  that  specific  direction  must  prevail. 

And  where  there  is  no  direction  as  to  either  registering  or 
recording,  but  a  direction  for  filing  papers  only,  the  conclusion  is 
stronger. 

Certainly  the  legislature  may  indicate  its  understanding  of  the 

21 


322  Apjjendix. 

law  in  particular  cases,  by  acts  declaratory  in  their  nature.  It  has 
done  this  in  relation  to  religious  bodies  incorporated  under  the  Act 
of  1813,  and  its  amendatory  acts,  in  the  statutes  of  1863  and  1868 
referred  to.  The  statute,  reducing  the  laws,  as  to  the  city  of  New 
York,  etc.,  is  treated  as  continuing  in  force  as  to  all  cases  of  this 
character. 

But  the  case  of  free  churches,  for  example,  is  not  within  this  rule 
and  principle.  They  are  incorporated  under  a  particular  act, 
neither  amendatory  nor  supplementary.  When  such  act  prescribes 
a  filing  in  the  office  of  clerk  of  the  county  in  which  the  church  is 
established,  it  must  be  that  a  record  in  the  register's  office  is  not 
enough.     (Act  of  April  13,  1854,  chap.  218.) 

The  consideration  of  the  subject  would  not  be  complete  without 
adverting  to  the  provisions  of  the  Revised  Statutes.  (1  R.  S.  762, 
§  38  and  §  63.) 

The  thirty-eighth  section  defines  the  term,  conveyance,  among 
other  things,  as  "  a  writing  by  which  the  title  to  any  real  estate  may 
be  affected  in  law  or  equity."  And  the  sixty-third  section  directs 
that  all  the  provisions  of  the  chapter,  except  the  eighteenth  section 
shall  extend  and  apply  to  the  register  of  the  city  and  county  of  New 
York,  in  the  same  manner  as  if  he  was  county  clerk  of  said  county. 

Two  observations  occur  upon  these  provisions.  It  can  scarcely 
be  supposed,  that  papers  and  an  order  for  the  change  of  name  of  a 
religious  society  fall,  by  the  largest  constructions  of  the  terms,  within 
the  thirty-eighth  section.  There  is  nothing  on  the  face  of  the 
documents,  directly  or  impliedly,  affecting  the  title  to  land  in  any 
manner. 

But  if  this  were  the  case,  then  the  positive  direction  of  a  subse- 
quent statute,  prescribing  a  different  office  for  filing  and  recording, 
must  prevail. 

In  Appendix  B,  ante,  I  have  stated  the  Acts  of  1852  and  of  1858, 
establishing  register's  offices  in  the  county  of  Kings  and  of  West- 
chester. The  duties  performed  by  the  register  in  New  York  were 
to  be  performed  by  the  registers  in  such  counties  respectively,  and 
the  performance  of  such  by  the  clerk  of  the  county  was  forbidden. 
Whatever  then,  we  find  is  to  be  done  by  the  register  in  New  York 
in  relation  to  writings  connected  with  religious  corporations  is  to  be 
done  by  the  registers  of  the  counties  named. 

The  result  appears  to  be :  — 

(1.)  That  certificates  of  incorporation  under  the  second  and 
third  sections  of  the  Act  of  1813,  and  the   amendments  thereto; 


Appendix.  323 

under  the  supplementary  Act  of  April  12, 1822,  as  to  the  Reformed 
Presbyterian  Church  ;  under  the  amendatory  Act  of  April  21, 1825, 
as  to  the  True  Reformed  Dutch  Church,  must  be  recorded  in  the 
reo-ister's  office  in  New  York,  Kings,  and  Westchester  counties  ;  and 
in  the  office  of  county  clerk  in  all  other  counties. 

(2.)  Certificates  of  incorporation  under  the  Act  of  1868  as  to 
Protestant  Episcopal  Churches,  and  certificates  of  the  adoption  of 
that  act  by  existing  corporations  of  such  Church,  are  to  be  recorded 
in  the  same  offices  respectively. 

(3.)  That  certificates  of  the  incorporation  of  free  churches  must 
be  filed  in  the  office  of  the  county  clerk  in  every  case. 

(4.)  Certificates  as  to  Roman  Catholic  Churches  under  the  Act 
of  March  25,  18G3,  must  also  be  filed  in  the  same  office. 

There  is  no  direction  as  to  recording  in  either  of  these  statutes. 

(5.)  All  the  papers  upon  the  change  of  name  of  an  incorporated 
church,  must  be  filed  and  recorded  in  the  office  of  the  county  clerk 
where  the  church  is  located. 

(6.)  Deeds  of  real  estate  executed  by  a  religious  corporation  are 
to  be  recorded  in  the  register's  office  of  the  counties  of  New  York, 
Kings,  and  Westchester,  and  in  the  county  clerk's  office  elsewhere. 


No.  1.— See  Page  48. 


NOTICE    OF    MEETING    TO    INCORPORATE  A    PROTESTANT    EPISCOPAL 

CHURCH. 

Notice  is  hereby  given  that  a  meeting  of  the  male  persons  of  full 
age  belonging  to  this  church  will  be  held  on  the  day  of  , 

at  o'clock  in  the  noon,  in  this  place  {llie  ximal place  of 

worship),  for  the  purpose  of  incorporating  themselves  under  the 
acts  of  the  legislature  in  such  case  provided,  and  to  determine  the 
name  or  title  by  which  such  church  shall  be  known  in  law ;  on 
what  day  in  Easter-week  an  annual  election  for  church-wardens  and 
vestrymen  shall  thereafter  take  place  ;  what  number  of  vestrymen, 
not  less  than  four  nor  more  than  eight,  shall  annually  be  elected  to 
constitute,  together  with  the  rector  (ff  there  be  one),  and  the  two 
church-wardens,  the  vestry  of  the  church  ;  and  by  a  majority  of 
votes  to  elect  two  church-wardens,  and  the  number  of  vestrymen 
determined  to  be  annually  elected,  to  serve  until  the  next  annual 
election. 


324  Appendix. 

[To  be  publicly  read  in  the  time  of  morning  service,  on  two 
Sundays  next  previous  to  the  meeting,  by  the  rector  or  officiating 
minister ;  or  if  there  be  none,  by  any  person  belonging  to  the 
church  ;  and  a  copy  must  be  posted  in  a  conspicuous  place,  on  the 
outside  door,  near  the  main  entrance  to  the  place  of  worship.] 


No.  2.  — Page  50. 

CERTIFICATK. 


To  all  to  whom  these  presents  may  come  :  We,  whose  names  are 
hereto  subscribed  do  certify,  that  on  the  day  of  , 

male  persons  of  full  age,  exceeding  six  in  number,  belonging  to  the 
church  or  congregation  worshiping  in  {the  building),  in  the 
of  ,  county  of  ,  and  State  of  New  York,  and  in 

communion  of  the  Protestant  Episcopal  Church,  not  before  incor- 
porated, met  at  their  said  place  of  public  worship,  for  the  purpose 
of  incorporating  themselves,  under  the  laws  of  the  legislature  of 
the  State  of  New  York  in  such  case  provided,  and  doing  the  other 
acts  therein  directed  to  be  done. 

That  the  subscriber,  the  Rev.  ,  rector  of  such  church, 

(or  ,  a  church-warden,  or  a  vestryman  of  such  church, 

there  being  no  rector),  (or  there  being  no  rector,  A.  B.,  one  of  such 
persons),  was  called  to  the  chair,  and  presided,  and  received  the 
votes. 

That  at  such  meeting,  C.  D.  and  E.  F.  were  duly  elected  church- 
wardens, and  were  duly  elected  vestrymen. 

That  in  Easter-week  was  fixed  upon  for  the  annual 

election  of  the  successors  of  such  church-wardens  and  vestrymen. 

That  it  was  determined  that  the  number  of  vestrymen  to  be  an- 
nually elected  should  be  ,  and  that  the  name  or  title  by  which 
such  church  or  congregation  should  be  known  in  law  should  be 
The 

In  testimony  whereof,  I,  the  presiding  officer  at  such  meeting, 
and  we,  ,  and  ,  persons  present  during 

the  same,  have  hereunto  set  our  hands  and  seals  this  day 

of 

Signed  and  sealed  ) 
in  the  presence  of  ) 

[This  is  to  be  acknowledged  or  proved  before  any  person  author- 
ized to  take  the  acknowledgment  or  proof  of  deeds.     This  certifi- 


Appendix.  825 

cate  is  then  to  be  recorded  in  the  office  of  the  clerk  of  the  county 
where  such  place  of  public  worship  is  situated,  or  by  the  officer 
whose  duty  it  is,  or  may  be  thereafter  made,  to  record  such  instru- 
ments. 

This  is  the  register  in  the  counties  of  New  York,  Kings,  and 
Westchester,  and  an  Act  was  passed  April  29,  1868,  legalizing  the 
incorporation  of  those  bodies,  whose  certificates  had  been  filed  in 
the  clerk's  office  in  those  counties,  instead  of  the  register's  office. 
(Laws,  1868,  chap.  71.)]. 


No.  3. 

NOTICE  OP  SUBSEQUENT  ELECTIONS.^ 

Notice  is  hereby  given,  that  an  election  for  two  church-wardens 
and  vestrymen  of  this  church,  will  be  held  at  this  place  on 
the  day  of  ,  at         o'clock,^  the  poll  to  remain  open 

one  hour,  or  longer  if  required. 


No.  4. 

NOTICE   FOR   A   VACANCY. 


The  difference  will  be  in  stating  that  the  election  is  to  fill  a 
vacancy  of  a  warden  or  vestryman.  It  must  be  given  in  the  time 
of  Divine  service,  and  ten  days  before  the  day  fixed  for  the  special 
election. 


No.  5. 

entry  of  election  ON  BOOK  OF  MINUTES. 

An  election  was  held  on  the  day  of  ,  immediately 

after  morning  service,  for  the  purpose   of  choosing  wardens  and 

1  To  be  read  for  two  Sundays  next  previous  to  the  election  day. 

2  The  hour  must  be  specified  in  the  notice,  and  the  election  is  to  be  immediately 
after  morning  service.  It  is  best  to  fix  the  hour,  so  as  to  admit  the  service  being- 
completed,  and  as  nearly  after  as  practicable. 


326  Appendix. 

vestrymen  for  the  ensuing  year  (or  for  filling  a  vacancy  in  the  office 
of  church-warden  or  vestryman).       The  presided   and 

received  the  votes,  and  signs  his  name  to  this  minute  of  proceed- 
ings, and  we  electors  present  have  signed  and  certified  the  same. 

[Signed  by  the  presiding  ofiicer  and  the  electors  called  by  him  to 
sign.] 


No.  6. 

CERTIFICATE    OF    ADOPTION    OF    ACT    OF    1868. 

This  is  to  certify  that  at  a  regular  meeting  of  the  vestry  of 

Church,  a  church  incorporated  under  the  first  section 

of  the  Act  of  the  legislature  passed  the  5th  of  April,  1813,  and 

its  amendments,  a  resolution  of  which  the  following  is  a  copy,  was 

adopted  by  the  vestry,  and  entered  upon  the  minutes. 

Resolved,  that  this  church  doth  hereby  determine  to  adopt  the 
provisions  of  the  ninth,  tenth,  eleventh,  twelfth,  thirteenth,  four- 
teenth, fifteenth,  sixteenth,  and  seventeenth  sections  of  the  Act  of 
the  legislature  passed  the  9th  day  of  May,  1868,  entitled  "  An  Act 
to  amend  the  Acts  for  the  Incorporation  of  Religious  Societies,  so 
far  as  the  same  relate  to  churches  in  connection  with  the  Protestant 
Episcopal  Church." 

[To  be  signed  by  the  presiding  officer  and  two  of  the  wardens  or 
vestrymen,  and  acknowledged  (or  proven  by  a  witness)  before  a 
judge  of  the  Supreme  Court,  or  of  the  Court  of  Common  Pleas 
of  the  county,  and  to  be  recorded  in  the  clerk's  office  of  the  county 
where  the  church  is  situated,  but  in  the  register's  office  if  situated 
in  the  city  of  New  York,  or  in  Kings  or  Westchester  county.  See 
Appendix  C] 


No.  7. 

CERTIFICATE    OF    INCORPORATION    UNDER    THE    THIRD    SECTION    OF 
ACT    OF    1813,    ETC. 

We,  whose  names  are  hereto  subscribed,  two  of  the  elders  (or 
members)  of  the  church  or  congregation  known  as  The 

,  in  which  divine  worship  is  celebrated  according  to  the 
rites  and  dispipline  of  the  Presbyterian  Church,  do  certify  that  on 


Appendix.  327 

the  day  of  ,  the  male  persons  of  full  age  who  have 

statedly  worshiped  in  such  church  or  congregation,  and  not  already 
incorporated,  met  at  ,  the  place  where  they  statedly  attend 

for  divine  worship,  and  did  then  and  there  elect  by  plurality  of 
voices,^  as  trustees  to  take  the  charge  of  the  estate  and 

property  belonging  to  such  church  or  congregation,  and  to  transact 
all  affairs  relative  to  the  temporalities  thereof.     And  further,  that 
the  name  or  title  by  which  the  said  trustees  and  their  successors 
should  be  known  was,  The 
Witness  our  hands  and  seals    ) 
this         day  of  ) 


No.  8. 

CEKTIFICATE    OF    INCORPORATION    OP    DUTCH    REFORMED    CHURCH. 

We  the  undersigned,  the  minister,  elders  and  deacons  (or  if  no 
minister),  elders  and  deacons  of  the  Reformed  Protestant  Dutch 
Church,  known  as  ,  worshiping  in  the  of 

,  county  of  ,  State  of  New  York,  and  trustees  of  such 

church,  do  hereby  certify  that  on  the         day  of  ,  we  assem- 

bled at  our  place  of  worship  in  said  (town),  for  the  purpose  of 
forming  ourselves,  and  our  successors,  into  a  body  corporate,  under 
the  act  or  acts  of  this  State,  in  such  case  provided.  And  we  did 
thereupon  fix  upon  the  name  or  title  of  the 

by  which  we  and  our  successors,  trustees,  shall  be  known  and 
designated. 

In  witness  whereof,  etc. 

[To  be  acknowledged  or  proven  before  an  officer  authorized  to 
take  acknowledgments,  and  to  be  recorded  in  the  register's  office 
of  New  York,  or  Kings,  or  Westchester  county.  And  in  the  clerk's 
office  if  in  any  other  county.     See  Appendix  C] 


No.  9. 

CERTIFICATE    OF   ROMAN    CATHOLIC    CHURCH. 

We  the  undersigned,  to  wit,  A.  B.  the  Roman  Catholic  Arch- 
bishop  (or  Bishop)  of  the  diocese  of  ,  C.  D.  Vicar-General 

1  Not  less  than  three,  nor  more  than  nine. 


328  Appendix. 

of  such  diocese,  and  E.  F.  pastor  of  the  church  of 
in  such  diocese  ;  and  laymen,  members  of  the  said 

church,  duly  selected  and  appointed,  hereby  certify,  that  the  name 
or  title  of  the  ,  is  that  by  which  they  and  their 

successors  shall  be  known  and  distinguished  as  a  body  corporate,  by 
virtue  of  the  act  of  the  legislature  entitled  "  An  Act  supplementary 
to  an  Act  entitled  '  An  Act  to  provide  for  the  Incorporation  of  Relig- 
ious Societies,  passed  April  5,  1813,'  passed  March  25,  1863." 

Witness  our  hands,  this  day  of 
Witness : 

[Acknowledged  or  proven  in  the  same  manner  as  deeds  of  real 
estate  and  filed  in  the  office  of  the  county  clerk,  and  a  copy  in  the 
office  of  the  Secretary  of  State.     See  Appendix  C] 


No.  10. 

CERTIFICATE    OF    INCORPORATION    OF   FREE    CHURCHES. 

We  whose  names  are  hereto  subscribed,  male  persons  of  full 
age,  citizens  of  the  United  States,  and  a  majority  of  whom  are  res- 
idents of  the  State  of  New  York,  do  hereby  certify  that  we  have 
associated  ourselves  together  for  the  purpose  of  founding  and  con- 
tinuing a  free  church  in  the  city  of  ,  State  of  New  York ; 
that  the  name  or  title  by  which  such  society  shall  be  known  in 
law  was  determined  to  be  the  Free  Church  of  the  ,  in 
the  of  .  That  the  purpose  of  its  organization  is  the 
ministering  of  the  Word  and  Sacraments  according  to  the  doctrine 
and  worship  and  discipline  of  the  Protestant  Episcopal  Church  in 
the  United  States  of  America.  That  the  following  are  the  names 
of  seven  trustees  who  are  to  manage  the  affairs  of  the  said  church 
and  body  corporate,  jive  of  whom  are  not  ministers  of  the  Gospel 
or  priests  of  any  denomination,  namely  : 

[Signed  in  duplicate  by  all,  and  to  be  acknowledged,  not  proved, 
and  to  be  approved  by  a  judge  of  the  Supreme  Court  of  the  dis- 
trict, or  of  the  Superior  Court  in  New  York,  and  filed  in  the  office 
of  the  county  clerk,  and  a  duplicate  in  the  office  of  the  Secretary 
of  State.     No  recording  is  directed.] 


Appendix.  329 

No.  11. 

PETITION  FOR  ORDER  TO  CHANGE  NAME. 

Supreme  Court.    In  the  matter  of  the  application  of  for  a  change 

of  name. 

The  petition  of  the  Street  Baptist  Church,  respectfully 

showeth  :  — 

That  your  petitioners  are  trustees  of  the  above  named  church,  a 
religious  body  incorporated  under  the  act  of  the  legislature  of  this 
State,  in  such  case  provided,  and  became  so  incorporated  by  the 
name  and  title  above  stated. 

That  it  became  desirable  to  change  the  location  of  its  place  of 
public  worship,  and  an  order  has  been  obtained  for  selling  the  same  ; 
that  by  reason  thereof,  the  said  name  has  become  incongruous. 

Your  petitioners  therefore  pray  that  an  order  may  be  made,  al- 
lowing the  above  corporation  to  change  such,  its  corporate  name, 
and  to  assume  the  name  of  the 

[Affidavit  of  the  truth  of  the  facts  to  be  made  by  one  of  the 
trustees.] 

ORDER. 

(See  form  No.  12.) 


{Another  form.) 

Supreme  Court.    In  the  matter  of  the  application  of  the  rector,  church-wardens, 
and  vestrymen  of  the  Church  of  the  Intercessor,  for  a  change  of  name. 

The  petition  of  the  rector,  church-wardens  and  vestrymen  of  the 
Church  of  the  Intercessor,  in  the  city  of  New  York,  respectfully 
showeth :  — 

That  your  petitioners  have  become  incorporated  under  the  laws 
of  this  State,  as  a  church  in  communion  with  the  Protestant  Epis- 
copal Church  in  the  United  States  of  America,  and  as  such  corpo- 
ration located  in  the  city  of  New  York. 

That  by  reason  of  the  similarity  of  their  corporate  name  to  that 
of  another  corporation  in  the  said  city  and  county,  to  wit,  the 
Church  of  the  Intercession,  the  corporate  name  of  your  petitioners 
has  become  incongruous  and  inconvenient,  and  that  the  location  of 
such  corporation  will  be  more  correctly  and  effectually  designated 
by  a  change  of  name. 


330  Appendix. 

Your  petitioners  pray  that  their  said  corporate  name  may  be 
changed  to  "  The  Rector,  Church-wardens,  and  Vestrymen  of  St. 
Alban's  Church  in  the  city  of  New  York." 

Signed  by  the  rector  and  attested  by  the  clerk. 

[The  petition  was  sworn  to  by  tlae  rector,  and  there  was  a  certifi- 
cate attached  by  the  clerk  of  the  vestry,  of  a  resolution  being 
adopted  by  such  vestry,  authorizing  an  application  for  such  change.] 


No.  12. 

ORDER  FOR  CHANGE  OF  NAME. 


Supreme  Court.    In  the  matter  of  the  application  of,  etc. 

At  a  Special  Term  of  the  Supreme  Court,  etc.,  held  14th  Febru- 
ary, 1867,  —  Present, ,  etc.  It  appearing  from  the  pe- 
tition of  "  The  Rector,"  etc.,  a  corporation  incorporated  under  the 
laws  of  this  State,  hereto  annexed,  that  the  name  by  which  such 
church  and  corporation  is  now  known  and  designated,  has  become 
and  is  incongruous  and  inconvenient,  and  that  by  a  change  of  its 
name  the  character  and  location  of  the  same  will  be  more  correctly 
and  effectually  designated  :  It  is  ordered  that  on  compliance  with 
the  provisions  of  the  Revised  Statutes,  and  of  chapter  323  of  the 
laws  of  1853,  and  of  chapter  464  of  the  laws  of  1847,  the  said  cor- 
poration be  authorized  to  assume  the  name  of  "  The  Rector,  Church- 
wardens, and  Vestrymen  of  St.  Albans'  Church  in  the  city  of  New 
York,"  and  from  and  after  the  20th  day  of  March,  1867,  be  known 
by  such  new  and  assumed  name  and  no  other. 

[This  order  is  to  be  published  within  ten  days  after  it  is  granted, 
in  one  of  the  public  newspapers  printed  in  the  county  in  which  the 
church  is  located.  And  within  twenty  days  the  petition,  affidavit  or 
affidavits,  order  and  affidavit  of  publication,  must  be  filed  and  re- 
corded in  the  clerk's  office  of  the  county  in  which  the  church  is 
located.     Act  of  December  14,  1847,  §§  4,  5.     See  Appendix  C] 

"  When  the  requirements  of  this  act  shall  be  comiplied  ^rith,  the 
applicant  shall  from  and  after  the  day  specified  for  that  purpose  in 
such  order,  be  known  by  the  name  which,  by  such  order,  he  shall 
be  authorized  to  assume,  and  by  no  other."  (Act  of  December  14, 
1847,  §  6.) 


Appendix.  331 

No.  13. 

PETITION   FOB   THE   SALE    OF   REAL    ESTATE.^ 

In  the  matter  of,  etc. 

To  the  Justices  of  the  Court : 

The  petition  of  the  undersigned  respectfully  showeth  :  — 

That  they  are  trustees  of  the  ,  a  religious  cor- 

poration incorporated  under  the  laws  of  the  State  of  New  York. 
That  they  own  two  parcels  of  real  estate,  one  the  lot  of  ground  on 
which  their  place  of  worship  stands,  and  another,  a  lot,  a  parcel  in 
the  town  of  ,  bounded  and  described  as  follows  :     All,  etc. 

That  the  said  incorporation  have  incurred  a  debt  of  hundred 

dollars  in  necessary  repairs  made  to  their  church.  That  they  have 
no  personal  property  to  pay  the  same.  That  such  lot  of  ground  is 
worth  about  the  sum  of  $  .     That  at  a  meeting  of  said  soci- 

ety, held  at  their  said  house  of  worship,  on  the         day  of  , 

at  which  there  were  present  and  voting,  a  majority  of  the  legal 
voters  of  the  said  religious  corporation,  a  resolution  was  passed  in- 
structing the  said  trustees  to  make  this  application,  and  effect  a 
sale  of  such  parcel  of  land ;  and  that  at  a  meeting  of  your  peti- 
tioners, as  a  board  of  trustees,  a  resolution  was  passed  to  make 
this  application  accordingly. 

[The  petition  should  be  verified  by  the  president  of  the  board, 
or  clerk. 

The  conveyance,  under  the  corporate  seal,  should,  I  think,  be 
recorded  in  the  register's  office  in  New  York,  "Westchester,  or 
Kings  county ;  and  in  the  county  clerk's  office  elsewhere.  See 
Appendix  C] 


No.  14. 

PETITION  FOR  LEAVE  TO  CONVEY  TO  TRUSTEES  OF  A  FREE 

CHURCH. 

To  the  Justices  of  the  Supreme  Court : 

The  petition  of  the  rector,  church-wardens,  and  vestrymen  of 
the  Church  of  the  ,  in  the  city  of  New  York,  respect- 

fully showeth :  — 

That  on  or  about  the  3d  day  of  November,  1853,  in  pursuance 

i  From  Mr.  Tyler's  book,  with  slight  changes.    A  good  form. 


332  Appendix. 

of  an  act  of  the  legislature  of  the  State  of  New  York,  entitled 
"  An  Act  to  provide  for  the  Incorporation  of  Religious  Societies, 
passed  April  5,  1813,"  they  became  a  body  corporate  in  communion 
with  the  Protestant  Episcopal  Church,  in  the  United  States  of 
America ;  that  on  or  about  the         day  of  ,  1853,  they  pur- 

chased four  lots  of  ground  situate,  etc.  That  subsequently,  they 
caused  to  be  erected  a  church  upon  such  lots,  which  has  since  been 
occupied  and  used  for  public  worship,  according  to  the  rites  and 
ceremonies  of  such  Protestant  Episcopal  Church,  and  that  the 
seats  in  such  church  have  always  been  free  to  all  worshipers. 
That  the  value  of  such  church  and  property  is  about  the  sum  of 
twenty  thousand  dollars. 

Your  petitioners  further  show  that  on  or  about  the  28th  of 
February,  1856,  the  said  corporation  was  indebted  in  the  sum 
of  twelve  thousand  dollars,  of  which  the  sum  of  ten  thousand  five 
hundred  dollars  was  secured  by  mortgages  upon  such  property. 
That  measures  were  taken  to  raise  money  by  voluntary  contribu- 
tions, to  enable  your  petitioners  to  discharge  such  indebtedness, 
with  the  engagement  and  understanding  that,  if  a  sufficient  sum  for 
such  purpose  could  be  procured,  your  petitioners  would  convey  such 
property  to  trustees,  to  be  incorporated  under  the  act  of  the  legis- 
lature entitled  "  An  Act  for  the  Incorporation  of  Societies  to  estab- 
lish Free  Churches,  passed  April  13,  1854." 

That  upon  such  stipulation  and  engagement,  sufficient  funds  have 
been  contributed  to  enable  your  petitioners  to  pay  off  the  whole 
of  such  indebtedness. 

That  on  or  about  the  8th  day  of  March,  1855,  the  Rev.  J.  J.  E. 
and  L.  M.  H.  etc.  (seven  in  all),  were  duly  incorporated  trustees, 
under  the  provisions  of  the  said  act  for  the  establishment  of  free 
churches,  under  the  title  of  "  The  Trustees  of  the  Church  of  the 
,  in  the  city  of  New  York,"  And  for  the  purpose  of 
taking  the  title  to  the  said  property  of  your  petitioners,  to  be  held 
by  them  in  trust,  under  such  last  mentioned  act. 

Your  petitioners  further  show,  that  for  the  purpose  of  better  se- 
curing and  perpetuating  their  said  church  and  property  as  a  free 
church,  and  for  the  purpose  of  carrying  into  effect  the  condition 
and  engagement  before  mentioned,  they  are  desirous  of  conveying 
the  said  church  property  to  the  last  mentioned  trustees,  on  the  con- 
dition that  the  same  shall  be  used  and  occupied  for  public  worship 
as  a  free  church,  in  communion  with  the  Protestant  p43iscopal 
Church  in  the  United  States  of  America. 


Appendix.  333 

Your  petitioners  therefore  pray  that  an  order  may  be  granted 
allowing  them  to  make  such  conveyance  for  the  purpose,  aforesaid. 

[This  was  signed  by  the  rector,  wardens,  and  vestrymen,  and 
sworn  to  by  the  rector.] 

ORDER   UPON    SAME. 

In  the  matter  of  the  application  of  the  rector,  etc.,  for  leave  to  convey  property 
to  the  trustees  of  the  Church  of,  etc. 

At,  etc.,  20th  June,  1857, —  Present,  J.  J.  R.,  one  of  the  judges, 
etc.  On  reading  and  filing  the  petition  of  the  rector,  etc.,  duly 
verified,  and  on  motion  of,  etc.,  ordered  that  the  said  rector,  etc., 
be  authorized  and  empowered  to  convey  these  four  lots  of  land  situ- 
ate and  lying  in,  etc.  (description),  together  with  the  church  erected 
thereon,  to  the  Rev.  E.  J.  G.,  etc.  (the  trustees),  as  trustees  under 
an  act  of  the  legislature  of  the  State  of  New  York,  entitled  "  An 
Act  for  the  Incorporation  of  Societies  to  establish  Free  Churches," 
passed  August  13,  1854,  to  be  held  by  them  and  their  successors  in 
trust,  as  a  free  church  in  communion  with  the  Protestant  Episcopal 
Church,  in  the  United  States  of  America. 


INDEX. 

♦ 

A. 

Page 

ASSISTANT  MINISTER 89 

Selection  not  to  be  made  without  consent  of  rector  90 
Vestry  to  decide  as  to  necessity  for  period  of  employ- 
ment and  salary  of 90 

ASSOCIATE  REFORMED  CHURCH    .        .        .        .152 

B. 

BRICK  CHURCH, 

Sale  of 134 

Vaults  of 240 

BURYING-GROUNDS. 

Act  of  April  11,  1842 219 

Misapplication  of  land 219 

When  may  be  mortgaged 220 

Removal  of  bodies      ..*..•  220 
Associations    .....••     221,  230 

Trustees  of 220 

Certificate 222 

Land  may  be  taken  for 223,  230 

Supervisors  of  Westchester,    King's,    and    Queen's 

Counties  to  make  regulations  concerning  burials  in  230 
Act  of  May  7,  1847,  as  to  purchase  of  lands  for,  by 

trustees  of  villages 230 

Private  cemeteries      .....••  233 

Birds  in  cemeteries 234 

Removal  of  bodies 235 

Church-yards 236 

Vaults 238 

C. 

CEMETERIES 219 

Private 233 


336 


Index. 


CERTIFICATE 50,  163,  190,  209,  312 

Forms  of 326 

(See  Protestant  Episcopal  Church,  Incorporations, 

Free  Churches,  Burting-grounds,  Appendix  C.) 
CERTIFICATES  OF  INCORPORATION, 

Recorded  in  wrong  county,  (Appendix)         .         .         317 
CHAPELS, 

Of  ease 34 


Parochial        .                            .... 

35 

Act  of  1860  as  to  erection  of     . 

.    206 

Act  of  1867 

207 

CHARTERS, 

To  churches  of  the  Church  of  England 

14-39 

Particular  charters 

14 

Trinity  Church 

.       14 

(See  Appendix,  295.) 

Protected  by  Constitution       .... 

15 

Alteration  of  name 

15 

St.  George's,  Hempstead         .... 

15-20 

Titles  in  charters 

.       21 

PoAver  to  hold  lands        ..... 

21 

If  they  could  take  by  devise       .... 

.       21 

Acts   of  warden  and   vestrymen  valid  in  absence  of 

rector          

22 

Right  of  minister  to  preside,  etc. 

.      22 

St.  Peter's,  Westchester         .... 

23 

Trinity  Church,  New  Rochelle    .... 

23,24 

St.  George's,  Flushing 

.     23,  24 

St.  James',  Newtown 

23,24 

Elections  and  qualifications  of  voters 

24 

Grace  Church,  Jamaica      ..... 

.       26 

Inhabitant,  what      .         .         .         . 

.    26-29 

Tow^ns  voter  to  be  inhabitant  of         .         .         . 

.      29 

In  communion,  etc.,  meaning  of      .         .         . 

29 

Chapels  of  ease,  worshipers  in    . 

.      34 

Parochial  chapels,  worshipers  in    . 

35 

Notices  of  election 

.      37 

Time  of  polling 

38 

Class  from  which  officers  to  be  chosen 

.      38 

Tenure  of  office 

38 

Quorum  and  majority         ..... 

.      38 

Index. 


337 


CHARTERS.—  Continued. 

Vacancy 

39 

Call  and  settlement  of  ministers  of  chartered  churches 

39 

Charters  to  the  Dutch  Church    .... 

102 

CHURCHES, 

Associate  Reformed 

152 

French       ........ 

138 

Lutheran 

139 

Methodist  Episcopal 

155 

Presbyterian 

130 

Protestant  P^piscopal  Church    .... 

44 

Quakers 

157 

Reformed  Dutch 

98 

Reformed  Presbyterian 

149 

Roman  Catholic 

.     141 

Shakers 

159 

True  Reformed  Dutch 

128 

Associate        ....... 

206 

Incorporation  of,  under  section  three  . 

.     161 

CHURCHES,  FREE, 

Organization  of       ....••         • 

209 

Certificate  ' 

209 

Vacancies  in  Board  of  Trustees     .... 

210 

Seats  or  pews  to  be  free 

.     210 

Sale  of  real  estate 

210 

Corporate  powers 

210 

To  hold  real  estate 

211 

By-laws 

211 

Elections 

211 

Name         .         .         .         .         . 

212 

Liability  for  debts 

213 

Canon  of  Episcopal  Church  as  to       . 

214 

Appointment  of  delegates  to  Convention 

215 

Change  to  renting  pews 

216 

CHURCH  OF  ENGLAND, 

In  the  Colonies 

1-13 

In  South  Carolina,  Virginia,  and  Maryland,  establish- 

ment complete    .        • 

1 

Laws  of  Duke  of  York,  of  1864 

2 

Eight  overseers  to  be  chosen 

2 

Two  church-wardens  chosen 

2 

338  Index. 

CHURCH   OF   ENGLAND.  —  Continued. 

Duties  of  minister 3 

Instructions  to  governors  of  the  colony  .  .  .  4,  5 
Acts  of  the  Colonial  Assembly  ....  5-13 
Church  at  Jamaica,  Queen's  County  ....  8 
Statutes  of  uniformity  and  toleration  in  the  colonies  13 

Churches  in  colonies  organized  under  special  charters       14 

Particular  charters 14 

Trinity  Church        .         .         .         .         .         .         .  14 

Act  of  1814  concerning 15 

(See  Appendix,  295.) 

CHURCH- WARDENS, 

Their  position  under  English  law       .         .         .         .90 

CHURCH-WARDENS  AND  VESTRYMEN. 

(See  pp.  49  to  81 ;  also  Protestant  Episcopal  Church, 
and  Appendix  A,  p.  311.) 

CIVIL  TRIBUNALS, 

Interposition  of 274 

In  sentences  of  ecclesiastical  courts        .         .         .         274 

In  pending  proceedings 277 

In  salaries       ........         279 

In  dedication  of  property  in  trust  for  religious  pur- 
poses     .........     280 

In  elections 291 

CLERK.    (See  Protestant  Episcopal  Church  Incorpo- 
rations, Etc.) 

COFFINS 241 

CONGREGATION, 

Rights  of,  as  to  occupation  of  church  building        .  86 

"  Belonging  to " .46 

CONSISTORY 119 

CONSTITUTION  OF  1777 40 

30th  article  as  to  free  religious  worship  ...  40 

31st  article.   No  minister  or  priest  capable  of  holding 
military  or  civil  office      ......       40 

36th  article.  No  grants  of  land  to  be  affected  or  charters 
annulled .41 

CONSTITUTION  OF  1822 43 

CONVENTION, 

Delegates  to 215 

COURTS.    (See  Civil  Tribunals.) 


Iiidex. 


339 


D. 

DELEGATES  TO  CONVENTION 
DEVISES  TO  INCORPORATIONS     . 
DISMISSAL  OF  MINISTERS 

In  Massachusetts    ..... 

In  Reformed  Dutch  Church 

In  Presbyterian  Church 

In  Protestant  Episcopal  Church 
DISTURBANCE  OF  RELIGIOUS    WORSHIP 
DUTCH  CHURCH,  THE  REFORMED, 

Historical  account  of     . 

Charters  of 

Charter  of  1696  to  church  in  New  York 

Will  of  Harpending 

Act  of  1753  . 

Constitution  of  1777 

Act  of  1783  . 

Act  of  March,  1784  . 

General  Act  of  1784 

Act  of  March,  1788  . 

Act  of  February,  1792  . 

Act  of  February  1,  1798    . 

Act  of  February  15,  1800 

Act  of  April  9,  1819 

Act  of  April  7,  1819,  General  Synod 

Act  of  April,  1813     .... 

Incorporation  of    . 

Election  of  trustees  in        .         . 

Act  of  April,  1835 

Constitution  of 

Consistory  of  .... 

General  remarks        .... 

Dismissal  of  ministers  in 
DUTCH  CHURCH, 

The  True  Reformed  .... 


.  215 

178-185 
.  260 
261 
262 
264 
,  265 
255 


98 
102 
102 
107 
108 
109 
109 
110 
111 
111 
112 
112 
113 
114 
114 
115 
115 
115 
117 
119 
119 
120 
262 


128 


E. 
ELECTIONS, 

In  Protestant  Episcopal  Church, 

(See  Protestant  Episcopal  Church.) 


340  Index. 

ELECTIONS.  —  Continued. 

In  Dutch  Church 115 

In  incorporations  under  section  three         .         .         .161 

In  free  churches     . 209 

Interposition  of  civil  tribunals  as  to    ....     291 

F. 

FORMS. 

Notice  of  meeting  to  incorporate  a  Protestant  Episcopal 

Church 323 

Certificate 324 

Notice  of  subsequent  election  ....        325 

Notice  for  a  vacancy  .         .         .         .         .         .         .325 

Entry  of  election  on  book  of  minutes  .  .  .  325 
Certificate  of  adoption  of  Act  of  1868  .  .  .326 
Certificate  of  incorporation  under  third  section  of  Act 

of  1813 326 

Certificate  of  incorporation  of  Dutch  Reformed  Church  327 
Certificate  of  Roman  Catholic  Church  .  .  .  327 
Certificate  of  incorporation  of  free  churches  .  328 

Petition  for  order  to  change  name     ....     329 

Order  for  change  of  name 330 

Petition  for  sale  of  real  estate  .  .  .  .  .331 
Petition   for  leave   to   convey  to  trustees  of  a  free 

church 331 

Order  upon  same       .......     333 

FREE  CHURCHES.    (See  Churches)          ...        209 
FRENCH  CHURCH 138 

H. 

HOSPITALS, 

Erection  of 207 

L 

INCORPORATIONS, 

General  provisions  applicable  to,  under  Act  of  1813, 

and  amendments    .         .         .         .         •         •         .173 
Common  seal  .......         173 

Power  to  take  the  property 173 

Trustees  to  sue  and  be  sued 175 

Authority  to  purchase  and  hold  lands  .         .         .176 


Index. 


341 


INCORPORATIONS.—  Continued. 

Acquisition  by  deed        ..... 

Devises  to  . 

Act  of  April,  1860,  as  to  devises  and  bequests 

Repairing  and  altering  buildings 

Powers  of  trustees  ..... 

By-laws      ....... 

Appointment  of  clerk     ..... 

Reduction  of  trustees        .... 

Duty  of  treasurer  to  make  account  and  inventory    189-192 
Corporation  to  commence  from  time  of  recording 


176 
178-185 

184 
.     185 

186 
.     187 

188 
.     189 


certificate        ..... 

Form  of  certificate 

Dissolution  of 

Omission  to  elect  trustees,  etc. 

Change  of  day  of  elections 

Change  of  name    .... 

Sale  of  real  estate        .... 

IMortgages  by         ...         . 

(See  Appendix  A,  311.) 

Under  section  three  .... 

First  election  of  trustees      •  . 

Notice  of  election       .... 

Persons  entitled  to  vote 

Certificate 

Form  of 

Meetings  of  trustees 

Presiding  trustee    .... 

Trustees  must  meet  as  a  board  to  bind  society 

Tenure  of  office,  classes,  vacancies 

Voters  at  subsequent  elections    . 

Clerk  to  keep  reports  of  attendants 

"  Stated  attendance  on  Divine  worship 

Salary  of  minister  .... 

Increase  or  reduction  of  trustees 

Trustees  holding  over     . 

Congregations  have  no  denominational  character 
Powers  of  trustees      .... 
INHABITANTS, 

What  constitutes    ..... 
INTERPOSITION  OF  CIVIL  TRIBUNALS 


190,  .318 

326 
191-195 

192 
.     195 

196 
198-204 

204 

161 

161 
161 
162 
163 
326 
165 
165 
165 
165 
166 
167 
167 
167 
169 
169 
170 
171,172 

.     26-29 
.     274 


342  Index. 

J. 
JESUITS, 

Act  against     . 141 

L. 
LUTHERAN  CHURCH 139 

M. 

MEETINGS  OF  VESTRY,  TRUSTEES,  Etc. 
(See  Protestant  Episcopal  Church,  Incorporations,  Etc.) 

METHODIST  EPISCOPAL  CHURCH   .        .        .        .154 

MINISTERS, 

Salary  of,  in  Pro.  Epis.  Church      ....  83 

Salary  of,  under  section  three 167 

Resignation  and  dismissal  of  .         .         .         .         260 

MISSION    HOUSES 207 

MUSIC, 

Under  control  of  rector 88 

N. 
NAME,  CHANGE  OF  CORPORATE     .        .        .        .196 
Opinion  as  to  recording  papers  on  .         .         .         .         319 

O. 
ORGANIZATION  OF  CHURCHES. 

Protestant  Episcopal      .         .         .     (Appendix,  311)      47 
Under  section  three  .         .         .         .         .         .161 

P. 

PEWS, 

Rights  in  .         . 243-254 

PRESBYTERIAN  CHURCH, 

Under  the  Colonial  Government,    .         .         .         .         130 

The  Brick  Church 134 

Act  of  1867  respecting  ......         136 

Dismissal  of  ministers  in 264 

PRESIDING  OFFICER. 

(See  Protestant  Episcopal  Church,  Incorporations.) 

PRIESTS, 

Acts  against  Popish        .         .         .         .         .         .         141 

PROPERTY  OF  CHURCH, 

Title  to  in  vestry 83 


Index. 


343 


(Appendix,  311) 


313 


PROPERTY  OF  CHURCH.  —  Continued. 

Conveyances  and  bequests  for  support  of  rector 

No  disposition  of  to  be  made  in  absence  of  rector  . 
PROTESTANT  EPISCOPAL  CHURCH.^ 

Act  of  1784  unsuitable  to  system  of  ... 

Act  of  1795,  preamble,  provisions  similar  to  act  of  1813 

Section  4  as  to  qualification  of  voters     . 

Act  of  1813 

First  election.         ....... 

Belonging  to  a  congregation 

Organization  .... 

Notice  of  object  of  meeting 

How  given     ..... 

Presiding  office!- 

Certificate     ..... 

Vestry  trustees  and  corporate  body 

Subsequent  elections  ..." 

Qualification  of  voters  at        .         .         .     " 

No  proxies  at    . 

When  held " 

Notice  not  essential    .... 

Duties  of  presiding  officer  at         .         .     " 

Tenure  of  office  of  church-wardens  and 
vestrymen       ....." 

Calling  rector       .         .         .         .         .     " 

Notice  of  meetings    .         .         .         .         " 

Rector  to  be  present  at  meetings  .     " 

Vacancies  ......••  '• 

Equality  of  votes  at  meetings 

Rector  has  no  power  to  adjourn  meetings,  etc.    . 

Presiding  officer  at  meetings  to  have  casting  vote 

Rights  in  property  ..... 

Title  to  property  in  vestry  .... 

Rights  of  rector  in  ..... 

Use  of  sacred  buildings 

Music     ........ 

Assistant  minister       ...... 

Church-wardens      ...... 

Dismissal  of  ministers        .   '      . 


83 
314 

44 
44 
45 
45 
45 
46 
47 

"  48 
48 

«  48 
312  50-58 


J14 


513 


58 
59 
64 
64 
65 
65 
66 

68 
70 
70 
70 
71 
72 

,    n 

79-82 
83 
83 
85 
87 
88 
89 
70 
265 


i  Attention  is  particularly  called  to  the  Act  of  1868,  in  Appendix  A. 


344  Index. 

PROTESTANT  EPISCOPAL  CHURCH.  —  Continued. 

Adoption  of  Act  of  1868  by  organized  churches     .         315 
(See  Act  of  1868,  Appendix  311,  and  notes  to  316.) 

Q. 

QUAKERS 157 

R. 
RECORDING, 

Opinion  as  to  proper  office  for  certificates  and  other 
church  documents,  (Appendix)       .         .         .         .319 

RECTOR, 

To  give  notice  of  and  preside  at  elections,  and 

receive  votes,  etc.     .         .         (Appendix,  311-313)       65 
Has  no  casting  vote  at    .         .  "  418 

To  give  notices  of  meetings         .        "  314        70 

To  preside  at  meetings  .         .  "  .         .         314 

Has  no  power  to  adjourn  meetings      ....      75 

Or  to  withdraw  from  them  to  prevent  business        .  77 

Refusing  to  attend      .         .         .        (Appendix,  314)       78 
To  have  casting  vote  at  .         .  "  "  79 

Riglits  in  property       .......     83 

Salary     .........  83 

Control  of  church  building  .....      85 

Control  of  music     .......  88 

Assistant  minister  not  to  be  chosen  without  assent  of  .  90 
No  disjiosition  of  property  to  be  made  in  absence  of  314 
(See  Act  of  1868,  p.  311 ;  and  Notes  ox,  p.  316.) 

REFORMED  PRESBYTERIAN  CHURCH    .        .        .     149 

REGISTER, 

Office  of,  place  for  recording  certificate  of  incorporation 

in  County  of  New  York 55 

(See  Appendix,  317.) 

ROMAN  CATHOLIC  CHURCH, 

Under  the  Colonial  Government         .         .         .         .141 

St.  Peter's  Church 142 

St.  Patrick's  Church 144 

Act   of  1855   as  to   conveyances,  etc.,   for   religious 

purposes     .         .        •.         .         .         .         ,         .         145 
Provisions  of  Act   of  1863    as    to   incorporation    of 
churches 146 


Index.  345 


S. 

SALARY 83,167,279 

SCHOOL-HOUSES, 

Erection,  etc.,  of 206,  207 

SENTENCES  OF  ECCLESIASTICAL  COURTS  .     274 

SHAKERS 159 

STATUTES, 

Of  Elizabeth 178 

Of  Equality  .........  41 

Of  Mortmain 178 

Of  Uniformity  and  Toleration  in  the  Colonies         .  13 

T. 

TREASURER  OF  INCORPORATIONS     ...        189 
TRINITY  CHURCH 14 

(See  Appendix,  295.) 
TRUSTEES, 

In  incorporations  under  section  three  .         .         .161 

Increase  or  reduction  of        .         .         .         .         •         169 

Holding  over 169 

Powers  of 171,172 

Generally  under  Act  of  1813 173 

Powers  of,  under  Act  of  1813        ....         186 

Of  free  churches 209 

Of  burying-grounds        ......         222 

V. 

VAULTS 238 

VESTRY, 

(See  Protestant  Episcopal  Church  and  Appendix,  p.  311.) 
VOTERS, 

Qualifications   of,  at   first   elections  in  Protestant 

Episcopal  Church 45,  311 

Subsequent    elections    in    Protestant    Episcopal 

Church 59,  313 

Qualifications  of,  in  incorporations  under  section 

three  at  first  elections   .         •         •         •         •         .162 
Subsequent  elections     ....••  166 


346  Index. 


w. 

WILL, 

Law  of  1860  prohibiting  devise  or  bequest  of 
more  than  half  testator's  estate  in  certain 
cases 147,  184,  212 

Devises  to  incorporations 178 


THE    END. 


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